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Can a clause like this in a stipulation hold up in court?

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Can a clause like this in a stipulation hold up in court?

Postby cgbtechcorp » Tue Apr 28, 2015 10:31 am

I am aware that just because something is in a contract, that if it's not legal, it can be thrown out. With that being said, a stipulation we signed has the following language:

Respondents shall not, under any circumstances, make any ex parte application or move this Court or any other court for any relief whatsoever in connection with this Stipulation, the Security Deposit or the Premises. In the event Respondents make any ex parte application or move this Court or any court for any relief whatsoever in connection with this Stipulation, the Security Deposit or the Premises, Respondents shall be in material breach of this Stipulation, and Petitioner may immediately file the Confession of Judgment with the Court clerk for the entry of a monetary judgment, and shall be entitled to the entry of a money judgment in favor of Petitioner and against Respondents for all attorneys’ fees and costs incurred by Petitioner in this proceeding, without notice to Respondents.

I have a previous post on this board, and due to a severe illness I was unable to make the Feb payment. Our lawyer did not tell either of us of the Petitioner's Notice to Cure in Feb and had no idea that anything was wrong (as he told my wife in March that he hadn't heard anything.) The ONLY way for us to get any relief is for a judge to look at the paperwork from the hospital and my doctors who specifically state that I was not competent during that period. The opposing lawyer pointed to this clause in court and our lawyer backed down like a little girl.

Our lawyer has proved himself dishonest and incompetent, yet he's still got my 6800 bucks and I am in no financial condition to hire a new attorney. If any research is going to be done, it'll have to be done on my part, as it's clear that while my attorney advertises aggressively, he does not act on his client's behalf unless there's something huge in it for him.

So before I start researching, if anyone knows if the stipulation above is legal and/or knows any resources to prove that this section is not legal, would you please let me know?

One last thing. I questioned the stipulation and was told by my lawyer in writing that if we didn't sign that the judgment would be filed and that we'd probably be jailed for contempt. I recently read that I had the right to question the stipulation and can prove that my lawyer said what he said. Was he right, or was he more interested in getting it done than preserving our rights?
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Re: Can a clause like this in a stipulation hold up in court

Postby TenantNet » Tue Apr 28, 2015 10:49 am

First, we're not lawyers, so we can't say definitively. Some things indeed are unenforceable.

It could depend on if you were represented or not. Usually stips for tenants with lawyers do not get tossed out (although some parts of the stip might be unenforceable as a matter of law). For example, by law, you cannot waive your RS rights.

Ex parte applications are generally not allowed. But "Prior Restraint" is often not enforceable. There are probably exceptions to that, but as I said, we're not lawyers.

Some things might depend on your overall strategy, or on what it is that you intend to do that will get the LL all upset.

We really can't say more without knowing all that has happened in the case.

Just curious, who's your attorney? (you can Private Mail it if you prefer.)
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