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LegalGems
LegalGems, Lawyer
Category: Family Law
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Experience:  Experienced Family Law Attorney
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The mother of the beneficiaries on these 529 accounts hired

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The mother of the beneficiaries on these 529 accounts hired an attorney and a trial setting conference was to be held on April 13, 2012 at 8:35am. I was never contacted again to be informed of when the trial was however I just received a default judgment in the mail since I did not appear on Dec. 12, 2012. If I wasn't notified that I needed to appear can I request to dismiss the default judgment? From your answer previously I don't believe she can require me to provide this accounting.
Good afternoon. If you were not properly served you would file a motion to vacate judgment, effectively nullifying the default judgment. Let me know if you need direction on which forms to use.
Customer: replied 4 years ago.

Yes, what type of form woudl I complete? I live in Wisconsin and the judgment was filed in Iowa so will I need to do this in person or is it possible to do it via mail?


 


Am I required to provide an accounting of these funds to the mother of the beneficiaries?


 

You can mail the forms in, but you will need to appear or hire an attorney to appear on your behalf. And yes, you would have to do an accounting. Let me find you a form for that state. In the meantime, here's some info on Vacating Judgments for your general reading:caselaw.findlaw.com/ia-supreme-court/1252657.html

 

 

Iowa's website is not as up to date apparently as most states - they don't have all of their forms on line - only some. Here's there website: http://www.iowacourts.gov/Court_Rules_and_Forms/Civil_Procedure_Forms/

 

You should call the clerk and ask them to fax/mail you the forms. There is usually a nominal fee for this. Another alternative is to google Iowa Motion to Vacate Default Judgment to find a form on line for purchase or that has been posted complimentary. Often times these are on attorney websites so due to copyright laws I can't refer you to any of these specific sites. I'm surprised the forms on line are so limited (through the court's site).

Customer: replied 4 years ago.


Do I appear when I file the motion to vacate?


 


If I am the owner of the 529 accounts why do I have to provide an accounting of the funds? I am the legal owner not the beneficiaries. According to another JustAnswer attorney because the 529 accounts were set up outside of the my brother's last will and testament and are not considered trust funds I, as the owner, have the ability to change beneficiaries and transfer funds as I see fit. Can you help me understand why I need to provide an accounting?

You wouldn't appear to FILE it; but you would appear at the hearing. You should be able to file it via mail.

If you are the owner, and the 529 was NOT court ordered (often times the court will order a parent to secure college tuition funds for a mionr child), then you would not need an accounting. However, in many cases these are court ordered and so the judge or the other parent can request an accounting. From reading your most recent post, it sounds like you are not the parent. In that case there would be no accounting as there is noone to account to.

 

If you are the successor owner, and the 529 lists beneficiaries, and NO custodian, then there would be no accounting required, as you are the true owner of the account.

Customer: replied 4 years ago.


My brother had these accounts set up prior to his death. He died in 2005. The accounts are in my name with his children listed as beneficiaries. His wife was not real happy about this arrangement as she likes to spend money hence the reason she has been trying to get the funds from me. I am pleased to know that she has no right to these funds and that I do not need to provide an accounting for them. When I file the motion to vacate do I just state that I was not notified of the trial date? My sister in law thinks the accounts were set up as a trust fund not a 529 so do I mention that as well to get her attorney "off my back"? Can they continually serve me with requests for an accounting on these accounts? This has been going on for over 1 year.

In your supprting documents you would state that service was not perfected which is why you are requesting a motion to vacate. There are a couple of ways to deal with the accounting requeat...a letter stating your position, or a lawsuit seeking a declaratory judgment as to whether you need to provide an accounting. I cannot give specific legal advice but often times if someone files a frivolous lawsuit i.e. without merit, you can request attorney fees and costs as a sanction.
LegalGems and other Family Law Specialists are ready to help you
Hi Tracey, Just following up on the 529 issue. I hope you got this all squared away and hopefully the mom gets the hint. It's kind of you to look after the beneficiaries under these circumstances.
Good Luck.
If you have any additional questions, please put TO LEGALGEMS and I'll be sure and touch base as soon as I get online.
Customer: replied 4 years ago.


I sent the motion to dismiss the default judgment on Friday to both the clerk of court and the attorney for my sister in law. I also asked that they dismiss her petition to get an accounting of the funds since they were established outside of my brother's last will and testament. This has been a very emotional time for me because I want to honor my brother's wishes and see that his children go to college but I also would like to just hand over the funds and be done with her once and for all. She is just a beast. I hope the court is willing to dismiss the judgement and not allow her to pursue this any further. Thank you so much for your help I really appreciate it.

Thank you! I understand the frustration when you are trying to do something good and you have obstacles such as this. I'm glad you followed through on this. Your brother's kids will appreciate your efforts!
Customer: replied 3 years ago.


Today in the mail I received a denial to dismiss the motion from the court referencing R.C.P. 1.435. When I look this up it doesn't seem to make sense to me. Can you help me understand what this means? The paperwork I had received previously from the attorney stated that if I did not provide an accounting that a judgement would be entered against me for equitable conversion. Doesn't that only pertain to things that are in "trust"? Any direction you could provide would be greatly appreciated.


 

That rule you cited deals with requests for dismissal based on jurisdictional challenges. If you didn't file a request for dismissal, this doesn't make sense. If you did file a request, then it was denied; meaning the court case is still "live" so to speak. You were filing a motion to vacate a default judgment, not a motion to dismiss, so this response doesn't make sense.

Equitable conversion deals with holding another's property in trust -but as we discussed, you aren't holding this in trust since you are technically the owner. If the court has ordered an accounting then one should be provided; but if the attorney is requesting it I would ask on what grounds he is requesting it.
Customer: replied 3 years ago.


What still confuses me is that I was not properly served so how can they file the default judgment? Wouldn't they have to prove that I was served? I honestly never received or signed for anything so this doesn't seem quite right. The paperwork that I received with the default judgment stated I had 30 days to provide the accounting however that date has come and gone. I had previously sent the attorney an accounting of the funds last year so can I just provide the most recent statement I received from the investment firm? I am thinking about just withdrawing the funds from Iowa and moving them to an investment firm in Wisconsin. What are your thoughts on that?

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