Lawyer makes error attaching bank account, Judge over turns

[Mark SW]

Jurisdiction

Rhode Island

Entered into an agreement to pay on a judgement. Never missed a payment, 8 months later lawyer garnishes bank account. I arrived at court to object. Judge denies garnishment due to current stip in place. I am left with overdrafts, and lawyer wont send letter to bank to release funds . Any help? any thoughts?

 

[army judge]

Any help? any thoughts?

The Brass Rule:

Do unto OTHERS, as they've done unto YOU!

Take the other party to small claims court and sue someone for the money you allege has been unlawfully taken from you.

Small claims cases are handled in the District Court when the parties are claiming damages of $5,000 or less based upon a contract, a retail sale, or services rendered. A small claims case is designed to dispense speedy and final justice. The filing fee for a small claims case is $75.75.

Personal injury cases and cases relating to damages incurred in automobile or other accidents are not heard as a small claims case. The District Court has adopted simple procedures for handling small claims cases, as well as specifically designed forms (copies are located under forms to the right) that do not require legal training to understand. Many of the normal rules of the District Court Rules of Civil Procedure are suspended to make the process easier and less expensive for the public. However, rules of law are not suspended, rules of evidence do apply, and cases will be decided based upon the correct and appropriate application of existing law.

The clerks in the District Court are not attorneys and they cannot give legal advice. They can provide information but they cannot fill out forms or advise you as to how to handle a case. For more information on small claims filings, The District Court Rules of Small Claims Procedure can be found on the link in the right column of this page.

If you file a small claims case, you can only receive a judgment for money. The court cannot order a person to do something or to stop a person from doing something. For example, the court cannot order a person to move a fence, to stop making noise, or to keep working on your car until the car is repaired properly.

Small claims cases are heard on the following days in the District Court:

The filing fee for a small claims case is $75.75.

Murray Judicial Complex
2nd Division District Court
45 Washington Square
Newport, Rhode Island 02840-2913
(401) 841-8350
Monday 9:00 a.m.

Noel Judicial Complex
3rd Division District Court
222 Quaker Lane
Warwick, Rhode Island 02886-0107
(401) 822-6750
Tuesday, Thursday and Friday 9:00 a.m.

McGrath Judicial Complex
4th Division District Court
4800 Tower Hill Road
Wakefield, Rhode Island 02879-2239
(401) 782-4131
Monday 9:00 a.m.

Garrahy Judicial Complex
6th Division District Court
One Dorrance Plaza
Providence, Rhode Island 02903-2719
(401) 458-5401
Monday - Friday 9:00 a.m.
Self-represented Litigants Wednesday 9:00 a.m.

https://www.courts.ri.gov/PublicRes...s/Small Claims Notice of Suit - Complaint.pdf

 

[Zigner]

One has to wonder what the penalties are for abuse of process in Rhode Island.

(The OP already has an avenue to pursue this, and it's not small claims court.)

 

[army judge]

One has to wonder what the penalties are for abuse of process in Rhode Island.

(The OP already has an avenue to pursue this, and it's not small claims court.)

The action of abuse of process provides a remedy for a claim arising when a legal procedure, although set in motion in proper form, has been perverted to accomplish an ulterior or wrongful purpose for which it was not designed.

Nagy v. McBurney.


https://www.courts.ri.gov/Courts/SupremeCourt/Opinions/13-60, 13-61, 13-62.pdf


Abuse of Process - FindLaw

 

[Zigner]

The action of abuse of process provides a remedy for a claim arising when a legal procedure, although set in motion in proper form, has been perverted to accomplish an ulterior or wrongful purpose for which it was not designed.

Wouldn't this apply when someone files a small claims suit relating to a matter that should have been properly filed as a motion with the court that is handling the existing case...?

I know this may come across as snarky, but I don't intend it that way. I believe that the OP shouldn't file a small claims case. I'm open to correction on the matter, if need be.

 

[army judge]

A tort or a law can be "malum in se" or "malum prohibitem".


The Latin term malum in se translates roughly to "wrong in itself," or "evil in itself." In the law, the phrase is used to refer to someone's actions that are inherently wrong, or sinful by nature, regardless of regulations of laws. This is different from malum prohibitum, which refers to an act that is only wrong because it is prohibited by law. To explore this concept, consider the following malum in se definition.



An act that is wrong or evil by nature, regardless of statute or law.

What is Malum in Se
Malum in se refers to certain acts that society judges as being inherently wrong, or even evil, whether or not laws have been enacted regarding them. Examples of malum in se acts include such things as rape, murder, child abuse, and theft. Such actions violate humanity's natural, or moral principles.

By contrast, society has created laws and regulations to govern certain activities, and a violation of one of these is considered malum prohibitum, which is wrong because it is prohibited by law. For instance, a person driving 90 mph down a roadway on which the speed limit has been set at 40 mph has committed an act that is malum prohibitum. Most people wouldn't consider this to be a morally reprehensible act, but it is still illegal.

Intent as a Factor in Malum in Se
The differentiation by the law in malum in se and malum prohibitum acts is whether or not intent is a required factor for prosecution. This may seem a bit confusing, but if someone is accused of committing a crime malum in se – which is something that is intrinsically bad or morally wrong, rather than prohibited by law – he or she must have had intent to do the illegal thing.

On the other hand, a person who commits a malum prohibitum act is strictly liable by simply violating the law, regardless of intent.

Malum Prohibitum

An act which is immoral because it is illegal; not necessarily illegal because it is immoral.

See, e.g. United States v. Bajakajian, 524 U.S. 321 (1998).

UNITED STATES, Petitioner, v. Hosep Krikor BAJAKAJIAN.

Some laws and torts require proving intent, as one must have the requisite intent to violate the tort or law.

If the attorney did as the OP alleged, was her action driven by a specific intent to violate the existing order, or was it done my mere mistake?

If the money was purloined, was it done so intentionally or accidentally?

It would be far simpler to pursue it in small claims.

There might be the possibility to settle the matter before the superior Court simply agreeing to offset the amount alleged to have been taken inappropriately.

 

[Zigner]

A tort or a law can be "malum in se" or "malum prohibitem".


The Latin term malum in se translates roughly to "wrong in itself," or "evil in itself." In the law, the phrase is used to refer to someone's actions that are inherently wrong, or sinful by nature, regardless of regulations of laws. This is different from malum prohibitum, which refers to an act that is only wrong because it is prohibited by law. To explore this concept, consider the following malum in se definition.



An act that is wrong or evil by nature, regardless of statute or law.

What is Malum in Se
Malum in se refers to certain acts that society judges as being inherently wrong, or even evil, whether or not laws have been enacted regarding them. Examples of malum in se acts include such things as rape, murder, child abuse, and theft. Such actions violate humanity's natural, or moral principles.

By contrast, society has created laws and regulations to govern certain activities, and a violation of one of these is considered malum prohibitum, which is wrong because it is prohibited by law. For instance, a person driving 90 mph down a roadway on which the speed limit has been set at 40 mph has committed an act that is malum prohibitum. Most people wouldn't consider this to be a morally reprehensible act, but it is still illegal.

Intent as a Factor in Malum in Se
The differentiation by the law in malum in se and malum prohibitum acts is whether or not intent is a required factor for prosecution. This may seem a bit confusing, but if someone is accused of committing a crime malum in se – which is something that is intrinsically bad or morally wrong, rather than prohibited by law – he or she must have had intent to do the illegal thing.

On the other hand, a person who commits a malum prohibitum act is strictly liable by simply violating the law, regardless of intent.

Malum Prohibitum

An act which is immoral because it is illegal; not necessarily illegal because it is immoral.

See, e.g. United States v. Bajakajian, 524 U.S. 321 (1998).

UNITED STATES, Petitioner, v. Hosep Krikor BAJAKAJIAN.

Some laws and torts require proving intent, as one must have the requisite intent to violate the tort or law.

If the attorney did as the OP alleged, was her action driven by a specific intent to violate the existing order, or was it done my mere mistake?

If the money was purloined, was it done so intentionally or accidentally?

It would be far simpler to pursue it in small claims.

There might be the possibility to settle the matter before the superior Court simply agreeing to offset the amount alleged to have been taken inappropriately.

One thing to point out: I don't believe that the money has been "taken", rather, I believe that the funds are on hold at the bank pending the results of the garnishment matter. The OP is attempting to force the attorney to file the appropriate paperwork to have those funds released to the OP. That would be more along the lines of injunctive relief (at this point). It might be more expeditious to file a motion in his current case than to go the small claims route.

 

[army judge]

. It might be more expeditious to file a motion in his current case than to go the small claims route.

Maybe, I don't know, nor do I care.

I tend to stay out of the weeds.

I like the safety of the sidewalk.

I have no horse running in that race.

I tend to be an observer these days, rarely do I participate.

 

[zddoodah]

Any help? any thoughts?

Three questions:

1. Why is the creditor's lawyer refusing to "send [a] letter to [the] bank to release [the] funds"?
2. Why do you believe it is necessary for the creditor's lawyer to "send [a] letter to [the] bank to release [the] funds"?
3. After you provided the bank with the court's order, what reason did the bank give you for not releasing the funds?