dealing with ex parte motion

What is the name of your state? Oregon

I'm trying to help my wife out of a legal hole. She has a ~$1,400 debt with Cap 1. She received a summons on Dec. 6th. Instead of answering, she called the lawyer to settle. She thought she'd agreed to settle for the $1,400 but, when the agreement arrived it was for about $3,000. Neither she, nor the plaintiff's attorney appeared in court on the trial date. The case is scheduled to be dismissed on 1/23.

Following the agreement for settlement, she received copies (from plaintiff's lawyer) of an ex parte motion for an order of default and entry of general judgment in which they are asking for ~$3,200 from my wife.

What should she do next considering this ex parte motion?

Thanks for any advice you can give us!

Try to get Chien or dcatz to chime in on this. Both are attorneys. You may want to repost with their names in the subject line.

My meager experience tells me that you need to file an objection to the motion. What you would say, I have no idea. From what you have posted, I cannot tell that you have a defense. However, I have heard claims that sometimes the judge will cut some slack to the debtor if the debtor made a good effort to resolve the debt before the court date -- but those situations were always decided in front of the judge on the day of the hearing -- the facts of your case may not measure up to even that weak standard.

Did you file an answer to the original summons and complaint (not required if in small claims court)? Why didn't wife appear in court (critical if in small claims court)?

There really are two issues: the need to deal with the motion and what comes next. DG has hit them both.

You don’t say when the motion will be heard. Certainly not later than 1/23/08 and possibly before. I’ll hope for the best and assume the worst. The papers that you received about the motion would give you the date and should give you a shortened but specific response time – eg. within five days of date of service. (I’m winging this without having checked OR procedure.) That response would be a reply to the motion. The time for a response may have passed and there may be little to say. I assume that nobody appeared at trial because you both thought you had a settlement and there wasn’t a meeting of the minds. Now, the attorney is trying to salvage the case without the need to re-file.

If I’m right, that’s what you say in the reply. If the time has passed, it’s what you say in court on the hearing date – one side thought $1,400, one side thought $3,000 and the trial came and went while you were getting it straight. Also, I’d very clearly add that a response would have been filed but for the mistaken belief in a settlement. I’m doubtful that a court will slam you, but the attorney may be less cordial, as he has to bear a portion of the blame for the confusion and probably the bigger portion, since he was drafting the agreement.

If there is still time to file a response to the motion, you file it with the court and serve the attorney. Mail and fax, if you can. I don’t know why I don’t see anything in your question about going back and re-visiting this with the attorney. If it could be attempted once, it could be attempted again, but nothing shows that you’re in the driver’s seat, and you should realize that, if it’s so.

So you get by an uncomfortable motion hearing and new dates are set for an Answer and trial. You go back to the well and try to re-negotiate an agreement that avoids the trial. It’s going to be bigger than you wanted, but it always was and the settlement agreement reflects that. If you have a viable defense, you assert it or threaten to assert it, and it gets you some discount. If you don’t have a viable defense, you commit to an installment payment plan that is for more than you hoped but allows you to avoid a judgment.

OP – If it was implied but not stated specifically in the prior response, your wife does appear in court on the scheduled hearing date. She has with her the settlement agreement that was tendered. That supports her assertion that it was simple confusion/disagreement/surprise that caused the nonappearance. As was stated, this is likely to be a bigger problem for the attorney, who should have either appeared on the trial date or given notice of a settlement. He didn’t appear and couldn’t do the other, because there was no signed agreement. (A word to the wise: don’t think to capitalize on this. He now has additional work to do with the court to fix the problem, but he can and he is not happy with your spouse for the need, regardless of who was at fault. It’s just human nature.)

The attorney made an “argument” in the motion in support of his contention that the case should not be dismissed and that a default judgment should be entered. Let that be your guideline: in your reply, if there is still time, or at the appearance, if the time has passed. Assume that the case will not be dismissed. (If it is, it is likely to be in a way that allows re-filing, and that will happen.) My suggestion is to not attack the attorney re: any “confusion” argument, because the spouse must deal with him again, and that won’t help the relationship. “Go with the flow” so long as it’s not hurting you. I agree that it’s not likely that the court will enter a default. If it appears to be leaning that way, then your wife can assert a desire to file an Answer.

(Hi DG – Chien has a new client with a backlog of cases. He’s up to the proverbial in alligators. He’s either seeking peace of mind in some sanctuary or in FL discussing alligators with GulfBreeze. I’m helping and backstopping, because we don’t post together, but I retire if he returns. You nailed the problems anyway.)

Thanks so much to everyone for your help and advice. I'll comment further on your advice but, first, I have a major question:

There doesn't seem to be any "date" referenced on the ex parte motion that my wife received from the plaintiff's lawyer. The only dates are the date that the documents were prepared (1/8) and the dates that refer to the credit dilenquency (8/2004). The court clerk did not have any knowledge of the documents. We don't know for sure that the court has them.

Is there any sense to this??

No, actually it doesn't. You're denied due process, if you're unable to respond because of inadequate notice. It's also a reason for the court to deny the motion, assuming that it recognizes the defect. If it were me, that would be a very good reason to get in touch with the attorney ASAP.

I'd also re-contact the clerk and ask the minimum advance time for noice of an ex parte motion. The fact that it was mailed to you has seemed strange from the start, but we're not OR. Normally, ex parte matters are done on comparatively short notice for exigent reasons. That was why we believed there was even a possibility that your time to reply had passed.

If, by chance, the motion has been heard and granted, you're going to have to use the same argument to try to vacate the resulting judgment as you would have used to oppose the motion.

Just following up on this situation. It appears that the ex parte motion was not actually sent to the court. It seems as though it was sent to my wife as a bluff. The settlement letter she received (with unagreeable terms) required a payment by 1/20. We do have concerns that the motion will be subsequently filed before the case is formally dismissed on 1/23 (as we do not intend to pay until we've reached a mutually agreeable settlement arrangment).

We did seek an initial consulation with a local lawyer. His recommendation is that we enter a statement to the court that my wife does have an interest in this case and that her absence in court on the hearing date was due to her belief that a settlement had been reached and that the case against her had been dropped.

Our hope is that even if plaintiff's attorney does file ex parte motion, the judge will be unwilling to grant it due to wife's expressed interest.

Before we met with the local lawyer, my wife did call the plaintiff's lawyer and attempted to straighten out the settlement agreement. She did not (could not) speak directly with the lawyer. She was told that the ex parte motion was filed with the court (untrue) and that they were actively seeking a judgment. He was unwilling to consider negotiating the terms set forth in the settlement letter that they had sent to my wife. She is unwilling to agree to said terms. Looks like we'll see what happens next.

He was unwilling to consider negotiating the terms . . . She is unwilling to agree to said terms. Looks like we'll see what happens next.

You might as well get a jump on things and start preparing a response. It’s the only possible eventuality. Either the court respects your wife’s “interest” and allows her to file an Answer (highly probable) or “punishes” the attorney by dismissing the case without prejudice and making him re-file (improbable but something the attorney would have to do, if it happened, to protect himself from malpractice). Then your wife must file an Answer. Either way, you get the same result.

Thanks dcatz. Those seem like reasonable assumptions and sound advice. She will submit her letter to the judge tomorrow. I guess we'll use our wait time to prepare an answer following that.

Check the statute of limitations.

I'll save him the trouble. It's 6 years.
The OP says the date of the "credit delinquency" is 8/2004. If you see a viable defense, don't you think that more of an explanation would help?

My wife submitted a letter to the court on 1/18 which briefly described the botched settlement and that she'd been told that the case would be withdrawn.

She didn't make first payment on 1/20 and, on 1/24, plaintiff's attorney filed ex parte motion for default judgment. That was 6 business days ago.

That's where things stand. We don't know who makes the next move...

Ex parte motion for default judgment still sits in wife's file unsigned. It appears that the judge is not going to sign it. We haven't heard anything from anyone at this point.

Should we:

a. do nothing

b. contact judge's assisstant to see if judge has a preference

c. do something else????