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Maverick, Lawyer
Category: Real Estate Law
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Experience:  20 years professional experience
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Hi Maverick. You advised me on this case last month-- on how

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Hi Maverick. You advised me on this case last month-- on how to file a motion to stay enforcement of judgment and request for a new trial. This is about the tenant counterclaim that I wasn't noticed on-- she got a judgment because I didn't appear for the money hearing in an eviction action. In ruling on my appeal, the district judge granted me a new trial in August (victory), but also affirmed the existing default judgment in the meantime. The small claims judge yesterday entered an order condemning the funds--if this will lead to the actual disbursement of the money to the tenant, before the re-trial, how do I stop it? Even if I win the trial in August, it will be difficult getting the money back from her. As you did before, please instruct me on the rules, motions, steps I need to take to block actual disbursement prior to the new trial I won on appeal. Thanks.
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.


What happened to the stay of enforcement of the judgment? Was that already filed?


Also, I need to know more about this order condemning the funds? Are you talking about a garnishment order on your bank account?


Customer: replied 6 years ago.
The original stay of enforcement of the judgment was dismissed, along with the motion for new trial because both were filed after the 10 day deadline-- when you and I were talking that day, that was already past the deadline. However, I had time to file an appeal -- a one page form by the 20th day deadline. All the materials and arguments and exhibits I gathered for the two dismissed motions were put in a folder by the court clerk, and they went with the appeal. On the basis of all that material reviewed by the appeal judge, the appeal resulted in a decision to grant me a new trial, while at the same time affirming the existing judgment. (I suppose that's just how it has to be, because the forthcoming trial has not taken place yet to reverse the judgment). I don't know the details of the order for condemning funds that I saw online today. Should I assume that that doesn't necessarily mean disbursement, given that there's a pending appeal?
Customer: replied 6 years ago.
The funds in my bank account have been frozen for a month now. My online statements show garnishment fees that were charged to the account (order for garnishment fees), etc., but my understanding from Wells Fargo was that they were not releasing the actual dollars until they received a court order. Assuming the court order they are referring to is the order for condemnation entered in the case yesterday, and the funds are now to be transferred by the bank to the clerk of court, can we block the clerk of court from mailing a check to the tenant, pending the appeal?
Expert:  Maverick replied 6 years ago.

You will need to file an appeal to the court of appeals to appeal the district judge's decision to affirm the default judgment. To do this you will have to find some legal error made by the judge. Also, you will likely need top post a bond on appeal and ask for stay order to stop the disbursement of funds. All of this is not easily done and will require you to be familiar with the Iowa Rules of App. Procedure. It starts with the filing of a notice of appeal.



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Customer: replied 6 years ago.

Looked up the appellate procedures and it's all over my head.


What do you think of this(?): Instead of appealing the district judge's decision to affirm the default judgment, can I simply ask the court (the original small claims court that rendered the judgment) to stay disbursement of the condemned funds pending resolution of the case at retrial? File a Motion for Stay of Disbursement of Judgment Funds Pending Appeal, or something that sounds like that... If this is okay,what is the rule I should cite for doing it?


I thought the granting of the retrial was for the express purpose of determining if this judgment has any merit. I am confident that I will be able to show it does not.


Finding an error in the district judge's affirmation of the default judgment is going to be tough, and I cannot attempt it. But I am focusing on my day in court during the retrial. Just need to hold the tenant at bay till then.





Expert:  Maverick replied 6 years ago.

That's just it.....if they granted you a new trial then they would not have affirmed the default it appears that they granted you a new trial only on a portion of the case, not the whole case. You will need to read the district court's order carefully to understand this and see what is going on.


If they reaffirmed the default then the small claims court is not going to have any duty, or reason to grant a stay, you have to go over the district judge's head ---i.e. court of appeals.

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