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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 32325
Experience:  Began practicing law in 1992
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I sued my property management company in small claims and

Customer Question

I sued my property management company in small claims and won by default in September 2014. In March 2015 he asked the judge to set aside the judgment and she said no. In June he appealed and had the case sent to superior court. Sometime after that the file disappear. On Sept. 7 Marion County Clerk to ask the status of the case when is the date and they didnt have it. I went back and forth between small claims and marion county demanding they find it. After some time Small Claims found that the Lawyer for the defense had the case on October 5th and promised to return it October 7th. He didnt return it to October 21 after I had Marion County call him several times. My questions is what do I do now? What do I file and most important did this lawyer exceed his filing time by holding the file? He never made the payment to have the case file and set up for a court date.
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

If you won the default in 9/14, when did the other side file their notice of appeal? You mention June, but is this the time they actually filed their appeal?

Expert:  Dwayne B. replied 1 year ago.

Also, when was the order signed denying their motion to vacate (set aside)?

Customer: replied 1 year ago.
Motion to set aside judgement was file March 17, 2015. He was denied on April 14, 2015 He appealed and the case was sent to Marion count clerk on June 10th.
Expert:  Dwayne B. replied 1 year ago.

On what date was the appeal filed? In Indiana the party would only have thirty days to file the appeal from the date on which the order being appealed was signed.

Customer: replied 1 year ago.
He filed for the appeal on June 10th.
Customer: replied 1 year ago.
I think Marion County gave him 60 days. However, He had the file from at least Sept.7th to October 21st and didnt file and pay the fee.
Expert:  Dwayne B. replied 1 year ago.

If the order was signed on April 14, then the appeal would have been due about May 14. That would mean he missed the time to appeal and the case should be dismissed so what you would file would be a Motion to Dismiss. In it you would allege that the appeals court would not have jurisdiction to hear the case. The same argument if he didn't timely pay the fee.

Expert:  Dwayne B. replied 1 year ago.

Also, be sure that they don't try to argue the merits of the original case. At this point they can only argue the points that support that a Motion to Vacate (Set Aside) should have been granted.

Customer: replied 1 year ago.
As I said I think Marion County gives him 60 days so he just made it by June 10th. However since he didn't properly file the papers until October 21st wouldn't the same thing apply? And I just want to make sure that if my request for a motion to dismiss is not granted, he can not go back to the original case only at the point where he is claiming they were not served. They were in fact served which is why the judge did not set it aside because the officer in court had served them on 2 occasions and additionally the Lawyer himself was in the court standing beside me when a reschedule was made at the clerks office which he doesnt deny it as well as regular mail service.
Expert:  Dwayne B. replied 1 year ago.

You still need to object because as a general rule the county can't just "give" someone a different time frame to appeal than the rules.

If your request to dismiss is denied then they still should only be able to argue the lower court erred on denying the Motion to Vacate, not all of the other points which should have been appealed back when the original judgment was entered.

Customer: replied 1 year ago.
OK so Im filing a motion to dismiss because they have no jurisdiction. If granted does it go back to small claims?
Customer: replied 1 year ago.
Or do I go back to small claims to finish interrogatory discovery?
Expert:  Dwayne B. replied 1 year ago.

If your motion to dismiss is granted then the case is over. The only thing that would be left to do is collect on the judgment and to do post-judgment discovery for that and that would be done in the small claims court.

Customer: replied 1 year ago.
Thank you, ***** ***** appreciate your help! If I need further assistance with this I hope I can connect with you again.
Expert:  Dwayne B. replied 1 year ago.

Yes, any time you need me just start the new question with "FOR DWAYNE B ONLY" and post it in the general Legal category and I will pick up as soon as I see it.

Best wishes to you and please don't forget to leave a Positive Rating so I receive credit for my work.