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Irwin Law
Irwin Law, Attorney
Category: Legal
Satisfied Customers: 7414
Experience:  Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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My landlord owes me $18,000 & is trying to small claims evict. The

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My landlord owes me $18,000 & is trying to small claims evict.
The threshold for our s c court is $6,000 so he claims I owe him
$6,000. If I counterclaim my claim for the actual $18,000 he
Defrauded out of me in cash, can I move it from small claims to
Superior where it is a more formal & appropriate venue? His do I accomplish
succeeding at transferring the case after he files ??

Hello. Thanks for choosing Just Answer for your question. I'll try to assist. I need to know what county and township small claims court the suit is, or willl be filed in. It might take a little time to check out the rule, but I can have an answer for you today.

Hello again. I'll take a chance that you re in Marion County. Here is the Litigant's manual for the Marion County Small Claims Court. Scroll down to Par. 11 c & d. If you counterclaim for more than $6,000 you have to either lower your demand to the court's limits or petition to transfer the case to the Superior or Circuit Court. If I were your attorney, and no suit has been filed yet, I would advise you to file first in Superior Court where you have better control over the case. If I guessed wrong, it should be easy to call up your own county's small claims rules on line, or just call the court. I suspect that this rule is the same state wide.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

Customer: replied 4 years ago.
Hamilton County Noblesville Indiana. The landlord who has been foreclosed upon his Prisa P to the sheriff for sale has occurred the landlord did not name he has tenant and his foreclosure lawsuit so I was unaware of it until almost a year right when we were getting ready to close On our purchase agreement Since we had prepossession of the house I reside there. I paid apprx$18,000 and stopped when he refused to close after heReceived his closing statement from the title company, his Hud 1 closing stmt indicated that he had to bring $36,000 to closing in order to satisfy his mortgage debt and get a release in order to have a clear title and sell the house to me. It was just a Ponzi scheme to collect my money why he stalled his foreclosure until he could still no longer

Okay. I think I get it. "Prisa P" is actually "Praecipe" , which is simply a request to the clerk to send a foreclosure judgment to the sheriff to have a sale set. What has happened as you've probably figured out is that your owner/seller is about to lose the home through the foreclosure of his mortgage. If he has breached a contract of sale with you, then you can file your suit in Hamilton Superior Court. He's not going to be able to evict you in small claims court because you are in possession under a purchase agreement, not as a tenant; however, the Hamilton Small Claims Court cases are actually docketed and heard in Superior Court 3 so you could file a damage counterclaim there in any amount and they will probably just transfer the whole case to the Superior Side of the court. I know this is somewhat confusing. In all probability unless you can bid cash for the property at the sheriff's sale, you are probably going to have to vacate within a few months. If you have the case number, you can call Cheryl in the Sheriff's office who handles the sales, and she'll tell you when it is set for. You should have been named in the foreclosure, so you might be able to buy a little time to move if you need it.

I hope this is helpful. I know it is confusing.

Customer: replied 4 years ago.

Well, I did intervene once I found out his status & saw his HUD stmt
so I was brought into it in that way. His ATTNY had the additional
'Unkniwn Tenant' I guess Defendant is the term, removed stating
they 'were unaware of any tenant or name if same' - funny since
the owner/seller had cashed over $14,000 in my cAshiers check at that point. But I was added.
You should probably take your situation to a local attorney to see what your options are realistically at this point.
Customer: replied 4 years ago.

Ok but does that validate UR previous statement that he can't evict me in small claims w/ these circumstances provided?
Has he filed a possession suit in Superior 3 yet? If so, you should file an answer and affirmative defense stating that you are purchasing on a contract and you are not a tenant. You can also state your counterclaim for the money you are owed. The court will not enter a default judgment for possession and will set it for a hearing. Be sure to show up on the date that the original summons said to appear.
Customer: replied 4 years ago.

Thx but could u pls re-state that a little differently? Not sure exactly what u r suggesting. I Believe that I have up to one week deadline before the 15th hearing to file a counterclaim ($18,000 plus maintenance, repairs (condition apart if Pur Agreement) in the clerks office, correct? I was served yesterday. Eviction hearing is 5/15/13 w/ damages hearing 6/13/13.
I will be back on line in about 2.5 hours
Customer: replied 4 years ago.

Ok answer in 2.5 hours or around 3:30
You said: I Believe that I have up to one week deadline before the 15th hearing to file a counterclaim ($18,000 plus maintenance, repairs (condition apart if Pur Agreement) in the clerks office, correct?

That is correct. Be sure to attach a copy of the purchase agreement to your Counterclaim. In addition, you must file and Answer to the basic complaint and deny that you are a tenant under a lease. Try 502"2349" Indy.
Customer: replied 4 years ago.

That is correct. Try 502"2349" Indy.
What does the above part ofuranswer mean?


Customer: replied 4 years ago.

Update: I have a dismissal motion prepared to file evidencing the exhibit used by plaintiff is unsupported by his claim. There is no lease or rental contract upon to rely that was breached by me. Matter of fact the evidence submitted by plaintiff insure my motion as his exhibit is our Purchase Agreement & no rental contract exists to support his claims.

Does this mesh with your analysis sent previosly and what more should I do to thwart his effort?

Yes, that is correct. You motion might not dismiss the case, but it will take it out of an eviction for non-payment of rent. BTW, sorry I was so cryptic before. If you use the 7 numbers and think droid, I can help better.

Customer: replied 4 years ago.

Yes. So it will defeat his small claims rush to judgment and move it to Big Court to allow for discovery and all the other things that go with....correct??

It should at least serve as an answer and require a trial on the facts. That by itself can result in a year of delay up there.

Customer: replied 4 years ago.

I understand ur at/t comment now.
Will do...
Great. . Can I get a Smile positive rating at this point?
Irwin Law and 6 other Legal Specialists are ready to help you
Customer: replied 4 years ago.

What is the statutory 'waiting period' in Hamilton County, IN
Between Precipe to sell real property by Sheriff & the date of
1st possible Sheriff auction???
The minimum time is about 35 days because of publication of notice of the sale. The sale notice is published once a week for three weeks. The sale can't be sooner than 30 days from the date of the FIRST publication date. A lot depends on how many sales she has to set and prepare notices (or get notices prepared by the attorney) for the paper.

Customer: replied 4 years ago.

As well as I could see It does not appear in the sheriffs website. At minimum I would think it would be 60 days from now, do you agree?
IMO, it will be closer to 60 from date of praecipe than 35. You can check with Cheryl who handles the Sheriff sales(NNN) NNN-NNNN in a few weeks and you should be able to get the exact date. That is, if you don't see it advertised in the paper - Noblesville LEDGER I think, before that.
Customer: replied 4 years ago.

We should discuss: If the court grants the motion to dismiss, they have 10 days to correct their pleading or its dismissed. If the court denies the motion to dismiss, there is 10 days after the notice of the court’s decision to respond to the complaint (including filing any other claims).

The timeline related to Rule 12 Motions to Dismiss:
Service of pleadings and Rule 12 motions. A responsive pleading required under these rules, shall be served within twenty [20] days after service of the prior pleading. Unless the court specifies otherwise, a reply shall be served within twenty [20] days after entry of an order requiring it. The service of a motion permitted under Rule 12 alters the time for service of responsive pleadings as follows, unless a different time is fixed by the court:
(1) if the court does not grant the motion, the responsive pleading shall be served in ten [10] days after notice of the court’s action;
(2) if the court grants the motion and the corrective action is allowed to be taken, it shall be taken within ten [10] days, and the responsive pleading shall be served within ten [10] days thereafter.

I am unsure what this mean relative to my case. The dismiss motion was filed. No answer yet. Evict hearing is May 16th & the Counterclaim deadline is one week prior or B4 May 9th. Cannot understand the timeline above versus the scheduled Hearing date & how that affects my date to counterclaim if Judge denies dismissal motion???

I can't answer without much more information and actually reading what has been filed so far.

Customer: replied 4 years ago.

Should I drop off material to u?
Would know how?
Customer: replied 4 years ago.

What do u mean: 'Would know how' ?

We aren't permitted to contact directly on this site. The answer to your last question was actually, Yes, do you know how to do that? Remember, you said I understand ur at/t comment now. Do you?? Or do I need my crayons?

Customer: replied 4 years ago.

No but I have a Commadore 64 & an Abacus

Guy: You would be better off with the invention by Mr. Bell + a seven digit no.

Customer: replied 4 years ago.

Sly but ok
The Droid is standing by. You might put a positive rating on this so we can close out the thread. Each time you send a Reply, it sends it back to me.
Irwin Law and 6 other Legal Specialists are ready to help you
Customer: replied 4 years ago.

Droid @1p?

try five zero two two three four nine - Indy ac. I know that I can help you, but you have to make the call now.