Case dismissed with prejudice sued again for same thing?????

[Bps4501]

What is the name of your state? OH

I had someone file suite against me on: 7/27/2004
Case 1
Outcome:
10/29/2004 No parties appeared, dismissed with prejudice, entries mailed
10/05/2004 Certified mail returned signed for by Me on 10-1-04 “my words not in court documents I could not of signed for this I was not in the state and I can prove it”
9/29/2004 Summons Issued
9/29/2004 Small Claims hearing scheduled Event: SC Hearing Date: 10/27/2004 Time: 5:00 pm Judge: XXXXXXXX. Location: Court Room Result: Dismissed
9/29/2004 Issue Date: 09/29/2004 Service : Summons Method : Certified Mail Cost Per My name and OH address Tracking No: XXXXXXXXXXXX
9/02/2004 Certified Mail Requested Receipt: XXXXX Date: 09/02/2004 $5.00 $5.00
8/25/2004 Failure of service by bailiff
7/27/2004 Bailiff Service Requested Receipt: XXXX Date: 07/27/2004 $10.00 $10.00
7/27/2004 Small Claims Info Sheet Filed-Bailiff Serv. Receipt XXXX Date: 07/27/2004



Then on 11/02/2004 Filed the same suite again:
Case 2
8/30/2006 Both parties appeared, exam held
7/11/2006 Debtor's Exam hearing set for Wednesday, August 30, 2006 @ 5:00 p.m...notice mailed
5/10/2006 Order of Exam-Bailiff Serv. Receipt: Date: 05/10/2006 $40.00 $40.00
5/10/2006 Personal Service Fee Receipt: Date: 05/10/2006 $10.00 $10.00
3/02/2005 No appearance by defendant, default judgment granted $1,300.00 plus costs and interest, entries mailed
2/09/2005 Issue Date: 02/09/2005 Service: Small Claims Complaint Method: Ordinary Mail Cost Per: $ My name and current address Tracking No: XXXXXXXX
2/09/2005 Small Claims hearing scheduled Event: SC Hearing Date: 03/02/2005 Time: 5:00 pm Judge: XXXXXXX. Location: Court Room Result: n/a by deft-default granted
2/09/2005 Summons Issued
1/21/2005 Ordinary Mail Service Fee Receipt: Date: 01/21/2005 $8.00 $8.00
11/23/2004 Unsuccessful Service "UNCLAIMED" Method : Certified Mail Issued : 11/02/2004 Service : Small Claims Complaint Served : Return : 11/23/2004 "UNCLAIMED"
11/02/2004 Certified Mail Service
11/02/2004 Small Claims Information Sheet Filed Receipt: Date: 11/02/2004 $30.00 $30.00
11/02/2004 Issue Date: 11/02/2004 Service : Small Claims Complaint Method : Certified Mail Cost Per :My name and old OH address Tracking No: XXXXXXX
11/02/2004 Small Claims hearing scheduled Event: SC Hearing Date: 12/01/2004 Time: 5:00 pm Judge:XXXXXX Location: Court Room Result: failure of service

Was this person allowed to do this after it was dismissed with prejudice prior?
The other stink of it is that when they filed it both times I was living in the state of FL from 6-4-04 through 3-22-05 during which I was involved in hurricane Ivan I had no mail for 55 days or even a place to live for that matter seeing the condo I was living at was no more out on the barrier island.
I only found out about all this after coming back to OH in March of 05. I went to get my OH drivers license and was told it was revoked by the DMV they went on to tell me, it was from not showing proof of insurance on a speeding ticket I had gotten while driving someone else's car. I had paid the ticket before I left to FL but I was never asked to show insurance but that’s water under the bridge. So I pulled my record up on the internet looking for this speeding ticket and I see 2 small claims cases.
I was never notified of this in any way any question I tried to ask the judge when I was in court for the exam I was told that "You cannot bring up anything only if it deals with paying the plaintiff" so I kept my mouth shut and answered all the questions this ass hat had to ask.
He still has not got a dime from me to this day.
Is there anything I can do about this at all?

 

[seniorjudge]

...

I had someone file suite against me on: 7/27/2004

Outcome:

10/29/2004 No parties appeared, dismissed with prejudice, entries mailed

****MONSTER GAP HERE****

Then on 11/02/2004 Filed the same suite again:

8/30/2006 Both parties appeared, exam held....

What happened between those two dates?

You can't have an exam till you get a judgment.

 

[dcatz]

It also seems uncommonly punitive to dismiss with prejudice for non-appearance.

Not suggesting that you are wrong, OP, but this is a strange looking record.

Do you also know that it was framed as the same case - e.g. what was called a collection case could be re-filed as a breach of contract case and slip through. Nobody but you would recognize the dismissal with prejudice.

 

[Bps4501]

**************...

Did you try to raise the issue when you appeared for the asset exam in the second case?

I tried to ask the judge when I was in court for the exam I was told that "You cannot bring up anything only if it deals with paying the plaintiff" so I kept my mouth shut

 

[dcatz]

Sorry about that. I caught it just as I submitted and was coming back to edit.

I don't think there's anything to do about the case but move to vacate. Unusual circumstances but valid.

But the rest of the record still looks odd. What happened, if you know?

 

[Bps4501]

He got a judgment by default he then requested the exam and as I said he has not enforced the judgment in any way.
I was not savvy to the dismiss with prejudice until today what I was looking through my record again due the the fact of Asset Acceptance is filing suit on an 9 year old department store card.
And from looking around on the net about laws and such I interpreted it that the the second time he filed suite that he really could not due to it being dismiss with prejudice.
Thats what I was trying to find out an answer to and have been unable to do so thus far.

1st of all I was never ever served with any paperwork to notify me that I was being requested to appear before a small claims court on both cases.

2nd I can show that I was not living at the address where the plaintiff tried to have me served and I can prove that I was living in the state of Florida at the time and it also coincided with the time of hurricane Ivan and I was displaced with no means of receiving mail once mail started working again it was 4 weeks off I did not ever receive an letter from anyone about either lawsuits to this day besides the one about the exam.

3rd It was dismissed with prejudice. "This I don't know if it matters or not"

I'm just really confused on the whole thing

 

[dcatz]

You’re going to need proof of the failure to serve, but the court record bears out the fact there was a problem.

Court clerks accept anything with a fee attached. It’s not their responsibility to see if there was a situation like yours, so it can get in again. Where you got burned worse was at the asset exam. If you move to vacate, it will appear that you delayed much longer than necessary.

When you say you were never served, defective service is a valid grounds to vacate, but you’ll have to prove everything posted here.

You went to the asset exam. Were you back in OH to receive notice of that? I have to assume so.

I’d move to vacate, but I’d look at the court file to be sure that it was dismissed with prejudice (yes, it makes a big difference) and, if it was, I’d want to know if the plaintiff tried to slip one over on the court by re-framing the case. That would help your motion, if so.

 

[dcatz]

You can call the court to make sure that the first case was dismissed with prejudice.

Human errors are made and, as I noted at the outset, a dismissal with prejudice, preventing a re-filing, seems unusually severe when the record reflects that neither party appeared. It just could be that the online record is wrong.

Then, as SJ points out, there is a strange gap in time. One might wonder whether the plaintiff went back into court to "straighten things out" (no, I don't know what that might mean, except to give himself a chance to re-file).

If it turns out that there was a dismissal with prejudice that later went to a default judgment, I'd want to look at the court files on the two cases to see how they compared.

Small Claims is so relaxed about what is needed to state a claim that it probably would not take much, if anything, to be treated as a new claim. As I mentioned, the clerk is not going to check.

There are a lot of unknowns in this scenario. You're going to have to do some digging in court files, because you don't have the answers yet.