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Need some opinions plz....

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luv2hate

Junior Member
What is the name of your state? Hawaii
Ok, here's a short version of a long story. Feel free to give your opinons/feedback (postivive or negative both welcome).
A very close female friend (once a girlfriend) of mine was in desperate need of a car. Her car had died.
I gave her one of my two cars on her word that she would get a loan as soon as possible (within 1 month) to pay me for the vehicle. The agreement was for $4000 (no written contract, only a verbal agreement). She needed the car as soon as possible so I just signed the title over to her and handed over the keys without any payment from her based solely on her word alone.
-1 month goes by and I start questioning her about payment.
- She says she can't get a loan by herself so she is in the process of finding a cosigner.
-6 months and 3000 excuses later, we both agree to monthly payments of $200.
-She wrote me out post dated checks equalling approximately half of the money owed.
-$100 checks dated every other week ( her payday).
-Cashed about 5 of the checks with no problem until one day she decides to close her account.
- I found out her account was closed when I deposited the 6th check and it bounced.
-My bank charged ME $20 for the bounced check.
-Called her numerous times after closing of account only to get yelled at by her Mom and Stepdad telling me to leave her alone and stop calling their house blah blah blah.
- Filed a small claims case. Hired process server. Papers were served. On the day of the court date my case was called and I walked up to the stand. My "friend" (the defendant) was not there and I was awarded a default judgement.
-Unsure of what to do next, I waited in the courtroom so I could talk to the clerk that was present.
-10 minutes or so later, defendant walks in the door with her mom.
- I told her she was too late, her arguement was that the notice served to her stated the time to be 8:30 a.m. or as soon thereafter. She arrived at 8:45 a.m.
-Went to main courthouse to file the judgement and noticed defendant and her mother at the courthouse also. They were filing something also but, at the time, I did not know what exactly it was.
-Clerk calls me on my cell phone a few days later notifying me that my judgement form was ready to be picked up.
-Got to the court, picked up my judgement form to find it was denied because defendant filed a motion to set aside default judgement. I did not know what her reason, or excuse was for filing the motion.
-A week or so later I get a letter in the mail saying a motion to set aside judgement had been filed and I needed to go to court on January 11, 2008 for the hearing.
-Her excuse was the notice served to her stated 8:30 a.m. or as soon thereafter, also that she was outside praying with her mother. She entered the court room at 8:45 a.m. (apprx. 8-10 mins. after our case had been called forth by the judge). Is praying outside the courtroom an acceptable reason to have been late? (your opinion) What do you think her chances are of having this motion set aside based on her 2 reasons as stated above?
If her request is denied, does the default judgement still stand? If so, can't she go back to court house and file for a motion again? (Never ending cycle?) Any advice as to what to do next? Any thoughts, positive or negative, about anything I may have already did?
Thanx for your time.
 


dcatz

Senior Member
What do you think her chances are of having this motion set aside based on her 2 reasons as stated above?

Neither of the reason should constitute adequate grounds. That said, her chances of getting the default vacated are probably pretty good. Courts are strongly disposed to favor a hearing on the merits rather than allow judgment by default and can go through legal gymnastics to accomplish that. She didn’t ignore that claim; she was 10 minutes late. If you both show up for the hearing on the motion, my guess would be that it’s better than even money that the court offers you both a chance for a “do-over” right then, so go as prepared as you were the first time.

If her request is denied, does the default judgement still stand? If so, can't she go back to court house and file for a motion again?

Without looking at your whole SC statute, my assumption would be that, if the motion is denied she has a right of appeal. That would mean a trial de novo (a new trial before another judge), so she gets a second bite of the apple anyway. If there is no right of appeal (and I seem to remember that very odd provision at HRS sect. 633.28: “There shall be no appeal from a judgment of the small claims division, but the court, sitting as the small claims division, may alter or set aside any judgment as provided by the rules of court”), then it makes it even more likely for me that the motion is granted and the judgment is vacated in favor of a hearing on the merits.

(Now, you created duplicate posts. Please delete the other that has yet to get a response.)
 

luv2hate

Junior Member
Thank you very much for the reply. I was kind of assuming that she wouldn't get the motion. This shines a whole new light on this case for me. Court date is for this Friday and I will take your advice and go in as prepared as I was on the first day, if not more. Thank you again for your time and advice. It is greatly appreciated!!!
 

dcatz

Senior Member
If the motion is denied, she doesn't get a chance to keep re-filing it. If it's denied and there is no right of appeal, you win. I don't think the court will slam the door on her that way. If I'm right, you go prepared. If I'm wrong, you've done nothing that you weren't ready to do in the first place.

(I don't understand the "no appeal" provision in your SC statute and suspect there is more to it, if all your statute is reviewed, along with your local rules. A blanket "no appeal" provision doesn't make good sense.)
 

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