Question about small claims case

[EbayBob]

UPDATE - comments welcome

I called the court today to find out details regarding what I needed to do to file an Opposition to the "Motion to set aside Judgement" that was filed, and the person I spoke to looked up the case and confirmed a Motion was indeed filed, but said it would most likely be denied for the meer fact that no Order was filed with it. She said if I wanted to, I could still just write a letter opposing it, but she felt it wasn't necessary.

Again, not knowing much about the process, apparently an "Order" is to be submitted as part of the motion, and she is saying that because it was not submitted it would be denied just from the fact that it was not filed completely.

Any thoughts.....does that make sense?

 

[Texas Pooh]

Ah... the wonderful world of civil procedure.

Many courts reqiuire the movant (the person who files the motion) to provide a draft order, and/or provide a notice of hearing. This is often available under the "local rules" for the court. If there is not strict compliance with the rules, the motion is not heard by the court and/or denied.

The problems are (a) the movant may eventually fix the problem, and you may not get notice that the motion will now be considered; or (b) the movant may refile the motion later in correct format. In either event, you may have to deal with the issue again later.

Thus, I generally prefer to file an appropriate response, and hope that the court considers the merits of the motion rather than the procedural issue, and the Court issues an order denying the motion. Make sure your motion has a draft order denying the motion under Rule 60(B) so that its a final order!

 

[EbayBob]

Texas Pooh.....It took me a while, but I finally found the Local Court Rules, and you are correct in it being a local requirement. I also found some other very specific rules that pertain to this as well....

201.70 All filings shall be in compliance with the Indiana Rules of Trial Procedure. If the
documents received are not in proper form, such deficiencies will not be corrected by court
personnel. The Clerk is not required to notify Counsel or litigants of a filing deficiency.

202.20 Each Motion, Petition or other request for relief shall be accompanied by a proposed order. Opposing counsel may submit proposed alternative orders to the Court.

202.30 The Court shall not be required to act on any Motion, Petition or other request for relief unless filed in conformity with these General Rules.

Bottom line, it probably makes sense to go ahead and oppose the motion.

 

[EbayBob]

Questions about the Motion Process

I've been doing some research and putting together my response to the Motion that was filed and had a couple of questions regarding the process.

According to the Local Rules, I will need to provide an "Opposing Order" with my response. Is an Order specifically detailing how you want the Judge to rule on the motion, or more just the formal mechanism with all the required case information and more a blank area for the judge to write his ruling on and sign it?

Because, if I basically have to detail how I want the judge to rule, can I also provide different options that can be chosen within the Order? In some of my research, I found an Order that seemed to do this, and included an option where the judge could rule the other party would also have to pay the costs(court fee's, copy costs, etc) incurred by the winning party having to respond to the motion. If this is possible, I think its a great deterrent to keep the other party from abusing the Motion process since he could potentially have to incur the costs of the opposing party responding each time.

Any thoughts?

 

[Texas Pooh]

The proposed order is how you want the Court to rule. It doesn't have to be fancy - it can say something like:

(caption for case)

ORDER

Having considered the pleadings of the parties, the Court is of the opinion that Plaintiff's Motion (insert title here) should be denied. It is accordingly:

ORDERED that Plaintiff's Motion (insert title again here) is denied.

(signature line for judge).


You can certainly put in alternatives if you have them. Note, that if you're not entitled to recover costs under some specific statute, and unless your response to the Motion specifies the statute/justification for costs, you won't be awarded them. However, it doesn't hurt to add the language to get costs - the judge will just cross it out if he doesn't like the language.

You're doing a great job! Keep it up.

 

[EbayBob]

UPDATE - Motion Denied

First of all, thanks Texas Pooh for all the information and advise....I really appreciate it.

Today, I went to the Court house and before going to the Clerks office to file my opposing motion, I first went up to Superior Court to ask them a few questions about it, and when they looked up the case, they told me it had already been denied and an Order sent out to both parties the day before. Sure enough, when I got home this evening and checked my mail, the Order was there and basically it was short and sweet and just said the Motion was reviewed and denied.

Based on the file date, the court responded within 5 days from when the motion was filed, not really giving me enough time to respond.....so I wonder if the quick response was due to the motion being filed improperly, and wonder if it even made it in front of the judge or denied just for the fact that it was not filed properly. Like I said, it doesnt say why, just that it was denied.....which of course is all I care about.

Anyway, thanks to all for your comments.....now hopefully he will just pay the judgement and we can be done with this.