motion for new trial

Iowa

This is long and somewhat confusing so I will try to recap.

We had work done on our pool, the company agreed on an amount, they exceed the amount and we refused to pay. Then they took us to small claims court. They did a bad job on the pool so we countered for an amount to fix the pool.

We all went to small claims court in front of a Magistrate; the judgment was in favor of the plaintiff. I filed a motion to reconsider because in the Magistrates finding she had an incorrect dollar amount listed in her ruling. It was denied. So I filed an appeal. Upon the appeal being granted the trial was set as to be tried anew as to all issues, because the recorder did not record the original trial. and Iowa code 631.13(4)(a) was sited.

Okay, then we went back to court and re tried the entire case, the district court judge then ruled on the appeal in favor of us (the defendant) and in his Conclusion of Law he used other cases as a guideline.

Then today we received a Motion for a new trial and challenge subject matter jurisdiction, from the plaintiff’s lawyer, with certified copies to the court and us.

Apparently the plaintiffs tried to appeal the appeal, and were told they couldn't so now they are asking that the matter be remanded to the original small claims court and magistrate to establish a record for appeal of the original ruling of the magistrate, whereupon an appeal to district court can appropriately recognize the magistrate's ruling and following the guiding well established principles of deference to the finding of fact and rules of law.

And they are challenging the setting of the court being in front of a judge instead of a magistrate.

And one more line from the motion, " On June 4, 2004, this mater was tried in the district court of Iowa before the honorable -------- ------. The trial was conducted in the district court and was reported by a certified court reporter, in violation of Iowa code section 631.13(4)(a).


Whew... Okay now to my questions...

What legal standing does the plaintiff have to ask for a new trial in front of the magistrate?

Can I object to the motion? And if I can what grounds?

If it does go to a new trial can I use the original findings during a new trial?

What approach should I take to this situation? (besides getting a lawyer)

Thank you.... If you have any advice in addition to the questions I asked it would be greatly appreciated!!!

one more question

I found the following rule and need to know if I am interpruting it correctly?

Rule 1.1007 Time for motions and exceptions. Motions
under rules 1.1003 and 1.1004 and bills of exception
under rule 1.1001 must be filed within ten days after
filing of the verdict, report or decision with the clerk or
discharge of a jury which failed to return a verdict, unless
the court, for good cause shown and not ex parte, grants
an additional time not to exceed 30 days. Resistances and
replies may be filed and supporting briefs may be served
as provided in rules 1.431(4) and 1.431(5). [Report 1943;
October 31, 1997, effective January 24, 1998; November
9, 2001, effective February 15, 2002]



Does this mean the motion for a new trial has to be filed within 10 days?

We received a certified letter from the plantiff today, 6/19 and the judgment was entered on 6/8. If the motion was not filed with the clerk on 6/18 it is not within a timely manner?

If this is the case, will the court recognize this or do I have to file additional papers?

http://www.iowabar.org/pamphlet.nsf/0/b363aaaab81f3069862564de00048852?OpenDocument

Read what if you lose .

already appealed

Okay, I really appreciate the web site I had already been to.

It was an appeal, and the Judge decided in our favor and now the plaintiff is asking for a new trial? I have done a lot of research and cannot find anything about this situation. For goodness sakes IT IS SMALL CLAIMS COURT.

If some one could read my first thread and help in this ODD situation it would be much appreciated!!!

Why not Just respond with " I am the respondant in this matter and Stand on the decision made by the Court ." ?

Clearly, at this point, you are in need of the services of a local attorney to review their letter and respond as appropriate. It sounds like you are close to winning this thing.... you don't want to now lose it on a legal technicality because you are too cheap to spend the few hundred getting advice.

Example:
Lets say that you had a small hangnail and decided to treat it yourself and save the medical expense. Fine. Everything went smooth in your clipping the hangnail, only now it has gotten infected and your arm is starting to turn red. It is now time to realize that you need some expert, qualified, EXPERIENCED assistance. Of course,you would go to the doctor or hospital.

The same situation as arisen in your lawsuit. Time to get expert, qualified EXPERIENCED help as this has clearly grown beyond the 'small claims' issue.

Me being cheap is not the issue here, I tried to get a lawyer to take this case from the beginning and have not found one that would take the case!! And I have spoken with 4 different lawyers; apparently it's not worth it to them.

I then tried to get the same 4 lawyers to take this case on appeal; nope not one would take it. Why you ask, I have not the foggiest idea!!!


So here I am, with none of my questions answered!!! So could someone please help!!! And answer my questions, this is real simple, this is free advice legal question and answer forum, I need some legal answers. I would be more than happy to shell out a few hundred dollars to get this taken care of but apparently no one wants my money!!

Please read my first thread and answer the questions, I would be much obliged!!

Clearly, you don't understand. I simply don't believe your claim that you couldn't find an attorney to take this case..... unless you forgot to say "on a contingent fee basis". Of course you won't find anyone willing to take it on that basis. All you need to do is to contact your local (county?) bar association and ask them for a no- or low-cost referral to a local attorney. Most of them offer a 30 minute 'consult' for less than $100.00.

Pay the flippin' money and get this resolved.

Clearly, you don't understand. I want to get an attorney and spoke with attorneys and was very clear, I did not care how much it would cost, none would take the case!!! Not that I need to justify to you, but I live in BFE Iowa and the District Court is in a community of 4,000 people. Not many lawyers around, so I called the nearest City, and the Lawyers did not have interest, because of the distance.

So once again, I need answers to my questions!!! (and apparently I need to move back to the city)

I have to laugh at this one !! I called the Referral Service once. They have to know what you are suing for of course, so after the questions were answered , the " clerk" told me it wouldn't be worth paying a Lawyer.
The clerk acted as the Lawyers herself .
No other law firm would touch it either. I understand your situation.

Although not in YOUR state, I was the Plaintiff in a case. I appealed the 2nd court's ruling. The respondent simply replied with .
" I hereby stand on the Judges ruling of ( DATE ) on this matter "

That Judges ruling was upheld, and I lost .

Now I have given you a suggestion, so quit stating why don't someone answer my questions. Take it or leave it. Have a nice day !!

I have to say.... you must live in a VERY unusual place where a person can't walk into the local (even a one attorney town) and say.... "I have a couple hundred dollars in my pocket for some legal advice... can you help me??" and have the attorney say, "Nope. Sorry".

Clearly, you must live in legal 'heaven' where the attorneys are simply too busy to take your money.

And the reason I am not able to offer advice is that you have a VERY specific situation requiring a review of the facts, and a reading of the documents presented by the other party... and by the court. Without that 'ability', any response would be a 'game of 100 questions'..... and guesses.

Thank you, I may need a little more help.

Do I just write on a piece of paper : " I hereby stand on the Judges ruling of ( DATE ) on this matter " ?

Or what type form should I use?

Thanks again!!

I would first suggest you try and do as Jetx stated. Have your money at hand .Walk into an attorney's Office . Have copies of your paperwork . Tell them you would like to pay for a consultation.

For 200 dollars or less they might even draw up a response to the motion and submit it for you.

If you can -not , and your stuck , I'd fallow the headings From their motion:

Court of the State , county - whatever, Plaintiff - v - respondent, Court number.

In place of the plaintiffs Motion , you write response to Motion ( what they wrote ).

Under all that write : I stand on the Ruling of Judge ________, on ( date ).

A copy of that ruling is attached ..

Type your response in the same or similar fashion as their motion.

Have it notarized and submit it before the time limit expires.

Either way, the Judge will make a ruling on the other parties motion.

Thank you - one more ?

Thank you for your help, the judge over ruled the plaintiffs request for a new trial, matter subject jurisdiction. So now we are owed the judgment. Time to collect, I telephoned the plaintiff to give them the opportunity to pay, but of course was brushed off. So I would like to file an affidavit of default. And would like to proceed with a levy of the bank account.

I have the account # and bank name and location, (from the endorsement on the back of the check I wrote) what needs to be on the affidavit of default? Is it a certain form or can I just state the plaintiff it case such and such has failed to pay the court ordered amount awarded to the defendant (our names), case number, judgment date and amount?

I think I have a form from the Iowa small claims pamphlet for the levy of bank account. But can I file both forms at the same time or do I have to wait a certain amount of time after I file the affidavit of default before I file a bank levy form?

Again thank you for your help!!

I'm not sure on that, but the even though the clerk can not give you legal advice, they might tell you the correct procedure if you ask them.

Also try asking the Collection agencies that collect Judgments, they may answer your questions.

Also if you contact a local Attorney , often time they will answer a simple question with out a charge.

Someone else here may know also. Congrats on the win .

I just had a response from one myself .