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I am filing a motion to dismiss based on the amount of they

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had to appeal the judges...
I am filing a motion to dismiss based on the amount of they had to appeal the judges decision in small claims court . Is it just one form I fill out or do I explain why I'm filing to dismiss their appeal against my small claims judgment. So on the motion
to dismiss form form I am asking to dismiss with prejudice. but there is a second sentence which reads "WHEREFORE, (Insert name and specify Plaintiff or Defendant) asks this Court that the case be dismissed, (specify with prejudice/ without prejudice), and
for all other proper relief" Do I fill that in as well? I still want to purse the judgment I was awarded in small claim.
Submitted: 2 years ago.Category: Legal
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Customer reply replied 2 years ago
16 November 2015 04:15
I am filing a motion to dismiss based on...
I am filing a motion to dismiss based on the amount of they had to appeal the judges decision in small claims court . Is it just one form I fill out or do I explain why I'm filing to dismiss their appeal against my small claims judgment. So on the motion to dismiss form form I am asking to dismiss with prejudice. but there is a second sentence which reads "WHEREFORE, (Insert name and specify Plaintiff or Defendant) asks this Court that the case be dismissed, (specify with prejudice/ without prejudice), and for all other proper relief" Do I fill that in as well? I still want to purse the judgment I was awarded in small claim. (I didnt mean to close my question)
Answered in 16 minutes by:
11/16/2015
Lawyer: RONB-ESQ, Lawyer replied 2 years ago
RONB-ESQ
RONB-ESQ, Lawyer
Category: Legal
Satisfied Customers: 357
Experience: Right of Way Manager at Access Midstream Partners, LP
Verified

Hi my name is ***** ***** I am an attorney licensed since 2003. Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only. .I see you have a question about filing a motion to dismiss in small claims court. Is that correct?

I have handled matters like this in the past and believe I can help you understand your rights. In the event I believe you should seek a local attorney, I will advise you of that as well.

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Customer reply replied 2 years ago
No Ron, the motion for dismisal is in superior court. He took the judgement from small claims and filed in appeal in superior court. I know I should get a lawyer I wish I could afford a lawyer but i make to much for legal aid and not enough to get a lawyer.
Lawyer: RONB-ESQ, Lawyer replied 2 years ago

Can you provide me some additional information. Are you the Plaintiff (one who filed suit) or defendant? You mention judges decision so I am unsure, but it appears the Judge has already ruled on your case or did I miss something? What is the maximum amount in controversy that the judge can rule on based on the jurisdiction where you filed the case? What was the amount awarded and to who? Is there a basis for appeal or is it automatic as in many locations that you can appeal small claims if you simply file the appeal.

I understand as to needing an attorney it is sad that there is so little help for people in between.

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Lawyer: RONB-ESQ, Lawyer replied 2 years ago

I spent the first year or two of legal practice taking on many pro bono cases for local legal aid and saw this first hand. It felt like for every 100 request received they only had 1 or 2 attorneys.

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Lawyer: RONB-ESQ, Lawyer replied 2 years ago

In case I need to look up some information what is the County and State of the Superior Court where this action is pending?

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Customer reply replied 2 years ago
I filed the suit. I sued my property manager and won September 2014. On March 17 the dependent filed to have the judge set aside the judgement. She said no. On June 10 he filed an appeal in superior court. Then my file went missing. On September 7th I started calling about my case but neither office knew what happened to it. I made some calls and finally on October 5th the small claims office located it with the defendants attorney. He promised to bring it back on the 7th but didnt bring it back till the 21st. Now Im filing to dismiss based on the attorney exceeding his appeal window. Now I need to know how to fill out that form and what to do?
Customer reply replied 2 years ago
The state is Indiana and Marion County
Lawyer: RONB-ESQ, Lawyer replied 2 years ago

Give me a few minutes to review some details. I will be back with you shortly.

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Customer reply replied 2 years ago
I was awarded $2800 (+). The maximum is $5000. I won by default even though the attorney was in court and answered twice when my case was called he is basing the appeal on never receiving notice of a law suite
Lawyer: RONB-ESQ, Lawyer replied 2 years ago

I notice the date of filing 9/2014, but when was the actual case heard by the Judge? Did the Judge or Court officer call the name of the case multiple times and then go forward with the hearing? Did the defendant file the notice of appeal within 60 days of that court hearing?

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Customer reply replied 2 years ago
I filed the original case in July, I was awarded Judgement in Septetmber. He was in the court in July and answered he went to the window with me to reschedule for the Sept date. He stood next to me an received the paper that said court was Sept 24 then didnt show. there was no on in court on the Sept 24 but me the judge and the clerk. In March he asked to set aside the judgement and the judge said no on April 14th because the court officer in court that day had served the company twice. He filed for an appeal on June 10th which would be 4 days short of the deadline but then he held on to the file for better than a month before filing and paying the fee. He shouldnt have had my file I wont even guess at how he got it but at the time he was put on notice he still didnt bring it back and properly file.
Lawyer: RONB-ESQ, Lawyer replied 2 years ago

I wanted to get some background, but your actual question relates to completing a Motion to Dismiss. I will assume with the small claims court. Since you filed the action you would be the plaintiff. Are you just filing the motion to be done with the issue as it is about to get drawn out or did the Defendant indicate that you could either dismiss or he would appeal to higher court? Do note that a dismissal with prejudice prevents you from ever legally filing suit again regarding the same matter. I know that when I represented the defendant's in cases like these I would usually appeal to higher Court because then all of the rules of the Court apply and as an attorney I had an advantage. I would dismiss a case with prejudice after settlement usually as part of settlement if I was Plaintiff and Defendant made agreeable settlement.

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Customer reply replied 2 years ago
Ok you have it backward. Im the plaintiff. I won the case. He appealed taking it from small claims to marion superior court. i want to dismiss the appeal because he missed his filing window and go back to small claims to recover my judgement.
Customer reply replied 2 years ago
i will log back on shortly. I have to leave the office
Lawyer: RONB-ESQ, Lawyer replied 2 years ago

Sorry I understand and was typing that he may get in trouble with Court for removing file, but if he timely filed the appeal it will likely move forward. Based on your comment you are stating that he missed the window so his appeal is not valid if I understand you correctly. I believe if that is the case you will get a little leeway from the Superior Court Judge being pro se (without attorney). You should file motion to dismiss and in the motion state all the relevant dates, fact that attorney was present when small claims set it for trial and didnt show. Then that he missed appeal by being x number of days late, as the rules required him to file an appeal within 60 days. Don't use word with prejudice just in case as again that dismisses the case and prevents any refiling. I think you would seek to dismiss the appeal based on the stated facts and then go back to small claims court and talk to them about ways to seek to collect on the judgment awarded. Just make sure you have all the dates correct and accurately set it out in your motion.

My goal is to provide you with excellent service. If for any reason you feel you received anything less, please reply back to me and I will attempt to further clarify my answer. I truly appreciate you rating me when we are done.

Regards,

Ron

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Customer reply replied 2 years ago
Are you still there
Lawyer: RONB-ESQ, Lawyer replied 2 years ago

I am sorry I thought you stepped away and I had to take care of another task. Please respond if you are still online and please ask any follow up or clarifications you need

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Lawyer: RONB-ESQ, Lawyer replied 2 years ago

I thought when you indicated you were leaving the office you would be gone longer. Again if you need me to further clarify my answer just reply back.

I am out of the office all day tomorrow until tomorrow evening, but I will occasionally glance at my phone to see if you respond this evening and I would be happy to reply. If I miss you tonight I will be happy to reply when I get back from an appt I have that will take most of the day tomorrow.

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Lawyer: RONB-ESQ, Lawyer replied 2 years ago

I checked in again just in case I missed you. I am signing off for the night and as mentioned will be out most of the day, but feel free to follow up if you need me to clarify anything or if I missed the mark.

My goal is to provide you with excellent service. If for any reason you feel you received anything less, please reply back to me and I will attempt to further clarify my answer. I truly appreciate you rating me when we are done.

Regards,

Ron

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Lawyer: RONB-ESQ, Lawyer replied 1 year ago

It is my goal to provide you excellent service and do my best to fully answer the question you posted. The only way I get any credit for my answer is if you give me a positive rating between good-excellent. I would truly appreciate you taking the time to go back and review my answer and give me feedback. In the event you don’t feel like I answered your question please reply so I have an opportunity to fully answer the question you asked. In the event you have already provided feedback and I missed it Thank you and please disregard.

Regards,

Ron

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RONB-ESQ
RONB-ESQ
RONB-ESQ, Lawyer
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Satisfied Customers: 357
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