Being sued from out of state

[brychance]

What is the name of your state? TX

My girlfriend has recently been filed against in a small claims court in Oregon. She lives in Dallas, Tx and I would like some advice after I lay out the facts:

In her divorce, she was awarded a boat and trailer. Her husband fled the state and in order to recover her property, hired a collection agency to help recover the boat. The collection agency, with the assistance of a local Oregon attorney, gained possession of the boat and it was agreed that it would be sold in Oregon and the proceeds split between the Attorney, collection agency and my girlfriend. Before the boat was put up for sale, the attorney suggested they have the boat serviced and inspected in good faith and this was done on 2/7/2004 which resulted in some minor repairs and cleanup. The boat was sold on 5/10/2004 with a signed bill of sale with the following wording:

“To buyer (buyers name), as-is, with no express, implied or other warranties of any kind whatsoever. Said boat and trailer are used and sold in as-is for the sum of…”

At which time the buyer took possession of the boat. On 5/21/2004, a letter from buyer was sent to the attorney wanting full refund of the purchase because of the following reason:

“Due to the misrepresentation of the mechanical condition of the vessel”

Apparently the buyer took the boat out and run it for a while, then claims it stopped running. On 8/26/2004 a certified letter was sent to my girlfriend demanding the amount for repairs on the boat. No contact was made with the buyer and on 10/11/2004, the buyer filed in small claims court, a suit against my girlfriend, her ex husband, the attorney and the boat inspection company. Yes, four groups at the same time. Mediation was done today, 12/13/04 and no agreement was reached.

Now my questions. Sorry for the long preamble, but I thought it best all the facts should be laid out first. Does she have to go to Oregon and appear in court? Can she send in an “answer” to the suit and say they have no jurisdiction to enter a valid judgment against her? Since this would also seem to be an open and shut case with the signed bill of sale, can she ask the court for a motion to dismiss or something? I’m just looking for the best course of action since she does not have the money or the ability to take time off work to fight this in court. Thanks so much for any help you can provide.

 

[seniorjudge]

How much money are we talking about here?

 

[brychance]

Cost of the suit

The suit is calling for $5372.00. Also bear in mind that the attorney who originally executed the sale is also named in the suit and she has been informed by him that he cannot advise her in this matter.

Thank you for any direction you can provide.

 

[seniorjudge]

I'm not sure I could follow all your pronouns there, but you need to find out if your state allows the registration of a foreign small claims judgment. If the folks in another state got a hefty judgment against you, they might very well try to enforce it in your state.

Bottom line: get a lawyer in the place the lawsuit is pending.

 

[JETX]

My girlfriend has recently been filed against in a small claims court in Oregon. She lives in Dallas, Tx and I would like some advice after I lay out the facts

Simply, have her file a 'Motion to Dismiss due to Lack of Jurisdiction' explaining that she does not live in Oregon. Did she ever live in Oregon?? If not, include that in the filing.

Sorry for the long preamble, but I thought it best all the facts should be laid out first. Does she have to go to Oregon and appear in court?

Unless she can avoid the lawsuit by dismissal (either as jurisdiction) or summary dismissal (due to lack of legal foundation on the part of the plaintiff) then she would need to appear or face the possibility of a default judgment against her.

Can she send in an “answer” to the suit and say they have no jurisdiction to enter a valid judgment against her?

Yes. See above.

Since this would also seem to be an open and shut case with the signed bill of sale, can she ask the court for a motion to dismiss or something?

Yes. See above.

 

[seniorjudge]

"Simply, have her file a 'Motion to Dismiss due to Lack of Jurisdiction' explaining that she does not live in Oregon. Did she ever live in Oregon?? If not, include that in the filing."

jetx, this may make her subject to the jurisdiction of the Oregon court (depending on what the agreement said):
"The collection agency, with the assistance of a local Oregon attorney, gained possession of the boat and it was agreed that it would be sold in Oregon and the proceeds split between the Attorney, collection agency and my girlfriend."

Also, if she files an answer in Oregon, she may very well be submitting herself to the jurisdiction of the court.

 

[badapple40]

Appear specially to contest the jurisdiction of the court, and just file a motion to dismiss for lack of personal jurisdiction and nothing else.

It appears to me though that since she was involved in the sale of a boat in Oregon, she has met minimum contacts and has purposely availed herself of the jurisdiction of that case. In other words, I don't think you have a personal jurisdiction problem.

You do, however, have a case for the possibility of judgment on the pleadings. Did the buyer attach the sales contract to the complaint? Did it say it was a complete agreement between the parties? And did it say "as is" and disclaim warranties? If so, then the court aught to dismiss the matter on the pleadings.

 

[seniorjudge]

Appear specially to contest the jurisdiction of the court, and just file a motion to dismiss for lack of personal jurisdiction and nothing else.

An entry of special appearance to contest jurisdiction is, in my never to be humble opinion, an urban legend among lawyers. Ain't no such critter.

CAUTION: There could be statutes and cases that prove I am 100% wrong!


Anyway, if such a motion were filed and then overruled by the court, the movant would be in the lawsuit for certain.

 

[brychance]

How to file the motion

You do, however, have a case for the possibility of judgment on the pleadings. Did the buyer attach the sales contract to the complaint? Did it say it was a complete agreement between the parties? And did it say "as is" and disclaim warranties? If so, then the court aught to dismiss the matter on the pleadings.

No, the sales contract was not attached to the complaint. Which I am hoping she can get a judgement on the pleadings as you say without having to take the time and expense to travel to Oregon. The exact line in the sales contract, which the buyer signed, reads as follows:

“To buyer (buyers name), as-is, with no express, implied or other warranties of any kind whatsoever. Said boat and trailer are used and sold in as-is for the sum of…”

That being the case, how does one go about filing a motion like this for judgement based on the sales contract? Can a letter simply be written to the court clerk or does it need to be filed in a certain way and in a certain format? Sorry to be so dense here, I've just never been faced with having to do something like this and everyone's comments are very much appreciated.