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Maverick
Maverick, Lawyer
Category: Real Estate Law
Satisfied Customers: 3431
Experience:  Over 13 years experience in civil law.
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We were the plaintiffs in a money judgment action in Iowa against

Customer Question

We were the plaintiffs in a money judgment action in Iowa against a non-paying tenant. We did not attend the money judgment hearing because we usually don't, after the tenant has moved out of the premises by virtue of the eviction or forcible entry and detainer (FED) action. Unbeknownst to us, this tenant had filed a counterclaim for $3,000, that the judge granted as a default judgment against us during the money claim hearing that we did not attend. We never received any notice of any kind about the existence of a counterclaim. As plaintiffs in the original money judgment action we were required to be meticulous in serving the defendant, by having a legal courier service serve the defendant in person. We thought we would be accorded the same protection in any money judgment action against us. When we inquired with the clerk of court, she said that there is no requirement for noticing in a counterclaim action. It will cost $185 to file an appeal, and if we do, what basis do we have for an appeal? Of course, the $3000 counterclaim is absolutely without merit. What legal argument can we use for a
successful appeal, or should we locate the tenant and work on a strategy of having her vacate the judgment by offering her some money, such as the $185 filing fee? Please advise on our best path. Thank you.
Submitted: 3 years ago.
Category: Real Estate Law
Expert:  Maverick replied 3 years ago.

Welcome to Just Answer! My name isXXXXX very much enjoy what I do and I hope that you will benefit from this information.

You should have received a copy of the answer and counterclaim by certified mail or fax or by a process server. You also should have received a notice of hearing on you claim as well as their counterclaim. The notice could have been combined in one document. If you did not, then that would be likely be a grounds for appealing the judgment against you.

 

Before filing an appeal, you may be able to file a motion for rehearing/ motion to vacate default judgment and have the judge reconsider his own ruling. If he denies that, then you can file an appeal and your time to appeal will start to run after that motion for rehearing is ruled upon.

 

Rule 1.1012 Grounds for vacating or modifying judgment

Rule 1.1013 Procedure for vacating or modifying judgment

 

http://www.legis.state.ia.us/DOCS/ACO/CR/LINC/02-02-2011.chapter.1.pdf

 

 

 

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Customer: replied 3 years ago.
Hi,

Finally, I found the rules above. The only potential grounds for requesting the judge to vacate the judgment that I can see is "mistake, neglect or omission of the clerk". This would refer to her not noticing us properly. You state: "You should have received a copy of the answer and counterclaim by certified mail or fax or by a process server." When we asked her about why we were never notified she replied that there is no noticing requirement to us (the defendants now) for a counterclaim action. Is this true? It boggles the mind. Please show me the noticing rule that we will use to ask for vacating the judgment, if there is one. If there is, then I will consider that strong enough for me to work on and I will accept your answer. Thank you.
Expert:  Maverick replied 3 years ago.

See rules 1.303(1), 1.441(2), and 1.442

 

Customer: replied 3 years ago.
Thank you for the above rules. I quoted 1.442 (2) below, which says, in the last sentence, that service by mail is complete upon mailing. I called the clerk of court and she says she mailed us the counterclaim, which we obviously did not receive or ever saw. Is simple mailing enough? No process server, certified mail, personal service, etc., just ordinary mail? If we didn't receive an ordinary letter because we were out of the country, or some such thing, is this enough to be getting default judgments in the thousands of dollars? I would like to make payment at this point but if I do that, will I lose this thread of converstion with you if I have further questions? BotXXXXX XXXXXne: if the clerk of court says she mailed it, and the rule says mailing completes service, do we have any prayer of getting this thing vacated, or winning on appeal? Please instruct me on how to find you again after I hit "accept answer"


Service shall be made by delivering, mailing, or transmitting
by fax (facsimile) a copy to the attorney or to the
party at the attorney’s or party’s last known address or, if
no address is known, by leaving it with the clerk of court.
Delivery within this rule means: handing it to the attorney
or to the party; leaving it at the attorney’s or party’s
office; or, if the office is closed or the person to be served
has no office, leaving it at the attorney’s or party’s dwelling
house or usual place of abode with some person of
suitable age and discretion residing therein. Service by
mail is complete upon mailing.
Expert:  Maverick replied 3 years ago.

It is usually the other side that is the one that serves it upon you by mail or fax. etc. On a counterclaim a process server is not required. But, usually a certificate of service is required to where the person that filed the counterclaim states at the bottom of the document that a copy of it was mailed via regular or certified mail on XYZ date. If you didn't receive notice, then that is a good ground for getting the default judgment over turned.

 

This thread will still be alive even after you click accept.

 

You can always direct future questions to me by starting your question with "This is for Maverick".

 

 

Maverick, Lawyer
Category: Real Estate Law
Satisfied Customers: 3431
Experience: Over 13 years experience in civil law.
Maverick and 5 other Real Estate Law Specialists are ready to help you
Customer: replied 3 years ago.
This question is for Maverick. Hi, life saver. This is the case

In filing the motion for a new trial or motion to stay, can we attach exhibits such as phone records, etc. Thank you.
Expert:  Maverick replied 3 years ago.

Yes and you should do so by using a affidavit that says that they are true and correct copies.

 

http://www.hcad.org/pdf/forms/fill/AR-1_fill.pdf

 

Use this as a go-by. modify as needed to reflect the truth. try to use as much of the language that is there.

 

Under evidence law, your personal records can sometimes qualify as business records also.

 

 

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