Hearing of motion to dismiss after being moved from small claims to civil docket

[RNMatlock]

Ohio. I filed a small claim against my now former landlord for selling me a mobile home in October 2014 that was infested with termites, and mold that had extensive hidden termite/water damage and active termites. None of this was disclosed upon showing/moving in and unfortunately due to time restraints we were unable to have it inspected. He had cosmetically doctored the place up with new paint and carpet and a "new roof". The selling price of the mobile home was $3500 in which we put down $3100 with the verbal agreement of paying $100 a month for 4 months with the last payment being February 1st. No purchase or rental agreement was given as we were told that he would have it for us the next day. That never happened. From about the second week, we started having plumbing problems (sinks not draining and backing up along with septic backing up). These things were brought to his attention and he half did any repairs. In December of 2014 I had to have my husband arrested for DV and I was granted a protection order. I informed him of this and he had asked if I was going to be able to afford the place myself which I told him yes. In January I had a plumbing issue which flooded my entire bathroom. He came in to fix the problem and added to it. While he was working, the breakers to my bedroom, bathroom, and laundry room were tripped. He had just left and didn't say a word. From that point on I had electrical issues throughout the mobile home. I had a reputable well known pest control company come in and it was determined that there was active termite colonies and extensive termite damage that would cost $1500 to remedy. I then had a mold and water restoration company come in because my ceilings were cracking and bowing really bad. They had determined that the mobile home needed almost $8000 to to make it livable (mold removal, water remediation and removal, ripout and replace ceilings all throughout, and totally gut and redo the bathroom, and repair water and termite damage). I filed in small claims court February 2 to at lease recover my $3000. He had filed eviction a week later saying that I did not pay my rent and last trailer payment. Two days later he was at my door with a 3 day notice to vacate and proceeded to harass me and say vulgar things to me. During this time, he shut off my water which he was not allowed to do resulting me in getting motel rooms in order to take care of my 1 year old son. The small claims case was moved to the civil docket per his attorney's request and a counterclaim that I bought the place as is. As of today, there is now a hearing on motion to dismiss the case set for next month. How is it that this can happen when I haven't had a chance to backup and support my claim because before every court date he has filed for continuance etc. I am unable to afford a lawyer and feel like I am just being looked over and definitely not being taken seriously. Will I have a chance to plead my case at this hearing?

 

[Silverplum]

Ohio. I filed a small claim against my now former landlord for selling me a mobile home in October 2014 that was infested with termites, and mold that had extensive hidden termite/water damage and active termites. None of this was disclosed upon showing/moving in and unfortunately due to time restraints we were unable to have it inspected. He had cosmetically doctored the place up with new paint and carpet and a "new roof". The selling price of the mobile home was $3500 in which we put down $3100 with the verbal agreement of paying $100 a month for 4 months with the last payment being February 1st. No purchase or rental agreement was given as we were told that he would have it for us the next day. That never happened. From about the second week, we started having plumbing problems (sinks not draining and backing up along with septic backing up). These things were brought to his attention and he half did any repairs. In December of 2014 I had to have my husband arrested for DV and I was granted a protection order. I informed him of this and he had asked if I was going to be able to afford the place myself which I told him yes. In January I had a plumbing issue which flooded my entire bathroom. He came in to fix the problem and added to it. While he was working, the breakers to my bedroom, bathroom, and laundry room were tripped. He had just left and didn't say a word. From that point on I had electrical issues throughout the mobile home. I had a reputable well known pest control company come in and it was determined that there was active termite colonies and extensive termite damage that would cost $1500 to remedy. I then had a mold and water restoration company come in because my ceilings were cracking and bowing really bad. They had determined that the mobile home needed almost $8000 to to make it livable (mold removal, water remediation and removal, ripout and replace ceilings all throughout, and totally gut and redo the bathroom, and repair water and termite damage). I filed in small claims court February 2 to at lease recover my $3000. He had filed eviction a week later saying that I did not pay my rent and last trailer payment. Two days later he was at my door with a 3 day notice to vacate and proceeded to harass me and say vulgar things to me. During this time, he shut off my water which he was not allowed to do resulting me in getting motel rooms in order to take care of my 1 year old son. The small claims case was moved to the civil docket per his attorney's request and a counterclaim that I bought the place as is. As of today, there is now a hearing on motion to dismiss the case set for next month. How is it that this can happen when I haven't had a chance to backup and support my claim because before every court date he has filed for continuance etc. I am unable to afford a lawyer and feel like I am just being looked over and definitely not being taken seriously. Will I have a chance to plead my case at this hearing?

You did purchase the place as-is.

If you want to represent yourself and not hire an attorney, you need to learn how to work within the court system as if you were an attorney. Did you respond to the counterclaim? You will have to show up to the dismissal hearing to argue that the case should go forward: no, you do not plead your case at the dismissal hearing.

Start here: http://www.ohiolegalservices.org/public/legal_problem/courts-hearings/documents-and-papers-from-a-court/motion-to-dismiss/qandact_view

 

[FlyingRon]

You can certianly make a case for continuing the trial if you did not have time (legitimately) to find counsel. In fact, if you immediately get counsel, I can bet the first thing he'll try is to move the date out so he can prepare.

Certainly you'd need to know what the motion actually says. If the argument is that you purchased the home "as is" I'd certainly argue that this is not the case. Further there are concerns about the validity of the contract and whether you really are renters or purchases given the situation.

As stated, you have to answer the motion's claims to avoid dismissal. Independently, you should obtain counsel and potentially ask for a continuance.

 

[latigo]

I'm going to cut to the quick here Taco. There is no reason to try to educate you on the Ohio's Rules of Civil Procedure or ask whether the defendant's motion is a Rule 12(b)(6) or a Rule 56. You wouldn't understand anyway.

The fact is that you do not have a legitimate claim against your defendant for rescission of the sales agreement (verbal or written). Meaning you are not entitle to a refund of the three grand!

This was a used unit. There were not expressions of warranty made by the seller (verbal or written.) In fact you make no mention whatsoever of the of the seller saying anything to you concerning its condition, good, bad or indifferent.

Not withstand your so called "time restraints" (to which a judge would turn a deaf ear) you had more than a reasonable opportunity to make an independent and thorough inspection of the unit before purchasing, personally or by a hired expert. And my guess is that you bought it because it was offered at a bargain price.

You claim that the owner painted over the "termite and water damage" to purposely conceal it. But that is pure conjecture and not supportive, admissible evidence of fraudulent misrepresentation.

Lastly, there is not implied warranty of fitness in the sale of used merchandise.

In sum, the purchase was made "as is" and there is no substantial peg on which you can hang your lawsuit.
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NOW THEN. Do you want to talk about the defendant's lawsuit and perhaps receive some assistance in defending that claim?

If so, let me know. But I serious doubt that his lawyer is pursing the same ridiculous "landlord/tenant 3-day eviction notice" crap the seller threw at you before hiring an attorney.