Won small claims case, defendant (no show) complained, judge ordered it be re-heard

[FrankinAz]

What is the name of your state (only U.S. law)? Arizona.

Quick background: Defendant advertised in print that he was selling A & B. Purchased A & B. Only got A. B never existed. Filed small claims case last spring. Defendant was a no show at the required mediation, actual hearing scheduled in September and defendant was once again a no show. Judge heard the entire case, I submitted over-whelming detailed evidence and documents. Judge awarded me the full ($3k) amount.

In October the defendant submitted a letter to the court stating he was out of the country from May to September and requested the case be re-heard. The judge obliged and the case is scheduled to be re-heard in December.

Question 1) The defendant has stated in the letter he was out of the country from May to September but court records show he was served by the sheriff in June and answered to the court 3 days later. So he made a false statement to the court in order to get the case re-heard. This may be an oversight on the judges part in re-scheduling the hearing. At the re-scheduled hearing, should I object to the case being he-heard on false statements in the letter? Should I immediately file to have the re-hearing quashed? or at least request a show cause hearing to determine if the case should be re-heard? The hearing is only 15 days away.

Let's start here, I do have 2 more questions .. Thank you

 

[Zigner]

The "letter" is called a "Motion to Vacate". Were you served with a copy of the motion? Did you contest the motion within the allotted 10 days? If you were properly served and you failed to contest it, then it's likely a done deal and you're going to have to do this again.

ETA: If the other party was out of the country at the time of the hearing, then he was out of the country at the time of the hearing. What does it matter if he was gone from May or from June?

 

[FrankinAz]

The "letter" is called a "Motion to Vacate". Were you served with a copy of the motion? Did you contest the motion within the allotted 10 days? If you were properly served and you failed to contest it, then it's likely a done deal and you're going to have to do this again.

He never filed a "Motion to Vacate", he simply sent a letter directly to the judge.

ETA: If the other party was out of the country at the time of the hearing, then he was out of the country at the time of the hearing. What does it matter if he was gone from May or from June?

He never filed a "Motion to Vacate", he simply sent a letter directly to the judge.

He was properly served by the sheriff AFTER he claims to have left the country and he answered so he had full knowledge of the pending court case. He then was a no show at both the mediation hearing and the case hearing and never contacted the court. Once he's served then it's his responsibility to show up or let the court know he's out of the country .. He did neither.

 

[Zigner]

He never filed a "Motion to Vacate", he simply sent a letter directly to the judge.

He was properly served by the sheriff AFTER he claims to have left the country and he answered so he had full knowledge of the pending court case. He then was a no show at both the mediation hearing and the case hearing and never contacted the court. Once he's served then it's his responsibility to show up or let the court know he's out of the country .. He did neither.

Were you served a copy of this "letter"?

 

[adjusterjack]

He never filed a "Motion to Vacate", he simply sent a letter directly to the judge.

He was properly served by the sheriff AFTER he claims to have left the country and he answered so he had full knowledge of the pending court case. He then was a no show at both the mediation hearing and the case hearing and never contacted the court. Once he's served then it's his responsibility to show up or let the court know he's out of the country .. He did neither.

Reality check. This is small claims court. Rules of procedure and evidence are relaxed and informal. The judge accepted the letter and scheduled the hearing because he wants to hear the case on its merits.

I doubt that there is anything you can do to get the judgment reinstated before the next hearing.

You can, of course, bring up his lie at the hearing in an effort to impeach his credibility but, otherwise, make sure you have evidence to support your allegations.

 

[Zigner]

Reality check. This is small claims court. Rules of procedure and evidence are relaxed and informal. The judge accepted the letter and scheduled the hearing because he wants to hear the case on its merits.

I doubt that there is anything you can do to get the judgment reinstated before the next hearing.

You can, of course, bring up his lie at the hearing in an effort to impeach his credibility but, otherwise, make sure you have evidence to support your allegations.

The OP may not even have to take it that far. If he wasn't served with a copy of the motion to vacate (the "letter"), then the motion should be dismissed. Period.

 

[Taxing Matters]

You can, of course, bring up his lie at the hearing in an effort to impeach his credibility but, otherwise, make sure you have evidence to support your allegations.

It might not be a lie. The Sheriff may have served someone in his household, not him personally, and that person then contacted the defendant at whatever foreign place he was at the time. After all, the rules of service permit service by “leaving a copy of each at that individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there.” 16 A.R.S. Rules of Civil Procedure, Rule 4.1(d). As a result, until I heard the defendant’s position, I would refrain from accusing him of lying. I’d point out what appears to be an inconsistency and see what the defendant has to say about it and go from there.

 

[FrankinAz]

To answer .. Yes, the court sent me a letter (along with the defendants letter) in which the judge referred to it as "ex Parte" communication. There is a form to request the judgement be vacated but the defendant never filed one, all he did was send the letter to the court. Since the letter was "Ex Parte", I assumed it would just be added to the file and no action taken. That was an error on my part.

The service by the sheriff was marked "restricted" and should have been served directly to the defendant.

Even though the defendant was a no show the judge went through the entire case and I presented all my printed evidence and documents. The judge was thorough and I will have no problems duplicating the verdict. I think the judge is just pacifying the defendant knowing I have the evidence and documentation to prove the case and to counter anything the defendant might say.

I was extremely well prepared and anticipated any questions the judge may ask and had the documents and answers ready and on-hand.

I'm filing to have a Judgement Debtors Exam to follow the hearing .. if they can fit it in.

 

[Zigner]

To answer .. Yes, the court sent me a letter (along with the defendants letter) in which the judge referred to it as "ex Parte" communication. There is a form to request the judgement be vacated but the defendant never filed one, all he did was send the letter to the court. Since the letter was "Ex Parte", I assumed it would just be added to the file and no action taken. That was an error on my part.

The service by the sheriff was marked "restricted" and should have been served directly to the defendant.

Even though the defendant was a no show the judge went through the entire case and I presented all my printed evidence and documents. The judge was thorough and I will have no problems duplicating the verdict. I think the judge is just pacifying the defendant knowing I have the evidence and documentation to prove the case and to counter anything the defendant might say.

I was extremely well prepared and anticipated any questions the judge may ask and had the documents and answers ready and on-hand.

I'm filing to have a Judgement Debtors Exam to follow the hearing .. if they can fit it in.

You screwed up. You were properly served with the motion and you failed to contest it within the required time. You are now going to have a brand new trial. If your case is as slam-dunk as you say, it shouldn't be a problem, but you will have to follow all the rules for the debtors exam as if this were a brand new case (because it is.)

 

[latigo]

What is the name of your state (only U.S. law)? Arizona.

Quick background: Defendant advertised in print that he was selling A & B. Purchased A & B. Only got A. B never existed. Filed small claims case last spring. Defendant was a no show at the required mediation, actual hearing scheduled in September and defendant was once again a no show. Judge heard the entire case, I submitted over-whelming detailed evidence and documents. Judge awarded me the full ($3k) amount.

In October the defendant submitted a letter to the court stating he was out of the country from May to September and requested the case be re-heard. The judge obliged and the case is scheduled to be re-heard in December.

Question 1) The defendant has stated in the letter he was out of the country from May to September but court records show he was served by the sheriff in June and answered to the court 3 days later. So he made a false statement to the court in order to get the case re-heard. This may be an oversight on the judges part in re-scheduling the hearing. At the re-scheduled hearing, should I object to the case being he-heard on false statements in the letter? Should I immediately file to have the re-hearing quashed? or at least request a show cause hearing to determine if the case should be re-heard? The hearing is only 15 days away.

Let's start here, I do have 2 more questions .. Thank you

I suppose you can file whatever suits you, but I don't see you overcoming the universal policy of favoring that cases be resolved on their merits rather than by default.

Clear the judge has decided that he want so hear the defendant's evidence as well as yours. And because of the informal nature of the tribunal where judicial discretion usually prevails over standard procedures and there is no appeal from interim orders, I think you'll just be running in place.

 

[adjusterjack]

I have lived in AZ for 45 years and have a lot of experience with AZ small claims court.

I concur with Latigo and Zigner regarding your error and you being stuck with a do-over.

And, yes to T-M, "lie" was probably ill-conceived.

 

[FrankinAz]

I never used the term "lied". I said he submitted a false statement to the judge and that statement resulted in the judge scheduling a re-hearing. The fellow claims he was out of the country from May to September but the county sheriff served him in June and he filed an answer with the court only 3 days later. Out of the country?? I don't think so. Common sense dictates.

That being said, I see that it was my error for not responding to the letter from the court. It was just a letter in the mail, no service.

I have no problems with a re-do .. the Pro-Tem judge was tack sharp, street smart and even though it was just the judge, a lady recorder, and me in the courtroom he was attentive and thorough, going through the entire case and he understood fully what went down.

I'll report back in 20 days and thank all of you for taking the time to respond. Happy holidays to all.

 

[Zigner]

The service by the sheriff was marked "restricted" and should have been served directly to the defendant.

OR the recipients authorized agent. That's how restricted mail works through the USPS.

 

[Zigner]

I never used the term "lied". I said he submitted a false statement to the judge and that statement resulted in the judge scheduling a re-hearing.

A "false statement" is synonymous with a "lie".

 

[FrankinAz]

Different judge, defendant showed, same result.

I really liked the first judge and was taken by surprise when another judge walked in the court room.

My evidence completely documented the timeline of events and the events themselves. The judge awarded me the full amount once again.

Question. The state of Arizona has a list of items that the judgement debtor needs to bring to an exam. It is outdated telling the debtor to bring last years tax returns, property owned, bank accounts, etc. .. I want to add websites/domains owned, eBay/Amazon user ID's/acct. #'s, Royalties from published media such as YouTube, books including isbn #'s, instructional videos and the name of the agent/company issuing any royalties.

My thinking is that the defendant won't want to produce all this stuff and will just pay up. Will the court allow me to request this sort of stuff?

He's solvent .. owns a dozen properties and has a solid internet presence .. the money is there, It how to get the defendant to part with it.