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Ask Maverick Your Own Question
Maverick, Lawyer
Category: Real Estate Law
Satisfied Customers: 6419
Experience:  20 years professional experience
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Customer Question

This question is for Maverick. Thank you for your help today. We filed the motion for stay and motion for new trial to vacate judgment just in time, although the court staff didn't seem familiar with the route we were taking. The small claims clerk of court asked us several times to produce the rules of procedure we were basing the motions on, etc. They were expecting an appeal. At any rate, we are depressed, because our frozen bank account has been zeroed as of today. It takes your breath away. What should be our next step? Could the judge possibly issue an order for the tenant not to spend what she just took from the account? Thank you.
Submitted: 6 years ago.
Category: Real Estate Law
Expert:  Maverick replied 6 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.


Okay, good. However, I did not know that you were in small claims court. That changes things a bit, but it should work in your favor. This would explain why the clerk did not know what you were doing.


First, make sure you get a hearing date on the motion for new trial that you filed. The hearing date should be BEFORE the date for your appeal time to expire if at all possible. The motion for new trial according to the rules should preserve your right to appeal but it is unclear whether the district court rules apply to small claims court. So, if you cannot get a hearing on the motion for new trial before the appeal date, then I would use the link below and file the one page appeal form.


In small claims court you have 20 days to appeal to a District Court (NOT THE COURT OF APPEALS) for any legal errors that have been made by the judge. There is a one page form by which you can file appeal.


You may want to send a letter to the judge with a copy to the other side so that he knows what is going on and you do not get lost in the system. If the judge does not give you hearing date for the new trial ASAP, then appeal.


The motion to stay would a have stopped the collection of money, but now, you will need to seek an order to refund the money to you at the time the judge grants the motion for new trial if he does. The judge cannot issue an order to keep the other side from spending the money until the judgment that is issued is first over turned either on appeal or by new trial.


Sorry this is happening to you.



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Customer: replied 6 years ago.
Thank you Maverick. Just called the clerk of court, who seemed pleased that now we are going to follow her instructions and file an appeal. She offered, however, to present the motions to the judge today first, and see what he says, before we appeal. We will know this afternoon; she asked me to call towards later in the day. What happens if the judge does grant us a new trial date, but for a date after the 20 day time window for the appeal?
Is that good or bad? We appreciate your help, I'm sure you know.
Expert:  Maverick replied 6 years ago.

If the judge agrees to grant a new trial date, then he should also agree to sign an order extending the time to file the appeal to 20 days after any decision is made on the motion for new trial. I would ask him to put that in writing, if possible so that your right to appeal is preserved. If you can go back to the local law library and read about whether the district court rules apply in small claims court, that would help.


Rule 1.101 Applicability; statutes affected. The rules in this chapter shall govern the practice and procedure in all courts of the state, except where they expressly provide otherwise or statutes not affected hereby provide different procedure in particular courts or cases.


It is unclear from this whether the small claims court has one or more separate rules that may apply to supersede the motion for new trial rule that we have been discussing.


I do not see a separate set of rules on line for small claims court but you may want to ask the clerk where you an find those if those exist.



Maverick and other Real Estate Law Specialists are ready to help you
Customer: replied 6 years ago.
We'll do as you say. Thank you very much.
Expert:  Maverick replied 6 years ago.
Sure. Thank you for your payment. Please come back if you need more assistance.