Case was dismissed?

[mgeoghan]

What is the name of your state? Massachusetts

I was sued awhile back by a credit card company. They were awarded a lein on my house. Anyway, I contacted them, set-up a payment arrangement, and had a system with the attorney where he would have them continue the case every 90 days as long as I made my payments. Well the last time the payment hearing came up, both he and I forgot to contact one another. Long story short he was not at the hearing, nor was I. A couple of weeks later I recieved a notice from the court saying something to the effect of "Neither Party Present, Case Dismissed" Here is my question. Where does this leave everything? Does the lein still exist on the house? Am I still obligated to pay him the money? If not, can he sue me all over again? I just want to make sure I do the right thing, I am not out to get out of paying what I owe but I want to make sure he can't come after me again and disregard the payment arrangement we made before. QAny advice would be appreciated.

Thanks!

 

[Chien]

This is a confusing fact situation, based on the information that you've posted. It would be helpful to know the terms of the payments arrangement but, without that, I would suggest contacting the attorney and re-establishing and completing it.

One would think that the case had not been concluded by a judgment or the court would have nothing to dismiss. That makes sense, if you had an agreement for payments over time, but it's inconsistent with them already getting a lien.

Then, either you don't say or the notice didn't say whether the case was dismissed with or without prejudice. My educated guess would be that it was without prejudice, when it was for the relatively insignificant fact of joint non-appearances. Without prejudice means he could file again.

Without reading your statutes, it is also possible that he could simply ask the court to reinstate the case to an active status. This is just a way of saying "Ooops", and the court could well do it. Maybe impose a little monetary slap on the wrist, but do it. I've seen it happen more than once.

So I think your position is still vulnerable on several possible levels, and there is really no telling what the status of the lien is, but you want it gone. If you're willing to complete the payment plan, I'd suggest contacting him and asking where you both stand and what his intentions are.

 

[mgeoghan]

Thanks for your reply. You had mentioned the terms of the agreement. Basically I'm sending him $100 every other week. Actually at the last payment hearing neither showed up, I spoke with him, he sent me a copy of the agreement asking the court to reinstate it which I signed. So this is technically the second time it's been dismissed. I spoke with him the day after the hearing was supposed to be, he said a capias was probably issued since I wasn't there. He must not have known that his people never showed up either and that the case was dismissed. Since then I have not heard a thing from him.

 

[mgeoghan]

I should also add, you mentioned it being inconsistant with a lein. The way the events unfolded was as follows. They sued me, I didn't go to the hearing since i wasn't going to fight it. I then received a notice that they had been awarded a lein. A couple of months later there was a payment review hearing scheduled. I got that and called the attorney to set up a payment arrangement. That's when we decided to continue every 3 months until it was paid off. One other thing, I'm not sure how he got a lein on the house to begin with as the property was homesteaded when purchased.

 

[Chien]

I would expect you'll hear from him again. I did some checking and this appears to be an active issue in Mass. Pre-judgment attachment has recently been discussed on the forum. Apparently, obtaining pre-judgment security (the lien) is more common in Mass. than most other states and is a prudent precaution to address the $500K homestead exemption. It's of less consequence in the face of a recorded homestead but, if the attachment is recorded, then the homestead declaration is filed and then judgment is entered, the judgment relates back to the date of the attachment, and the lien is exempt from protection under the Homestead Act. That's not your set of facts but, since it's probable that not every prospective defendant would have filed a declaration, I would think it would be prudent to seek the pre-judgment remedy as a matter of course, and you can do it ex parte. I was incorrectly assuming that it was a post-judgment lien.

The foregoing fact situation arose in a 2006 tort case, and I suppose it could be appealed. Also, you say that you had your homestead in place. (My state also has a homestead exemption, as do many, and that would never deter me from filing a post-judgment lien. I would consider it tantamount to malpractice to fail to do so. Judgments last and circumstances change.)

The reason that I think he has to get back to you is basically the same. If we're talking about pre-judgment remedies (and that's the way I'm now reading your post), he has a case that has been dismissed and can never go to judgment. Therefore, the pre-judgment lien can never be perfected. If I'm now reading your post correctly, that is malpractice as far as his client is concerned. He needs closure.

If this was dismissed once before and reinstated by mutual agreement and now has been dismissed again, one wonders how generous the court will be. I still don't expect that it was dismissed with prejudice, but I think you have a little leverage. How long that lien can last if it isn't reinstated is something you should discuss with local counsel, if it comes to that. I don't know if it was also recorded.

Post back if I'm misreading the chronology. This is an interesting situation, if it's as I understand it.

 

[mgeoghan]

I think the lein is part of the default judgement. But the property was homesteaded in 2004. The judgement was entered in early 2006.

 

[Chien]

OP - I think we've come full-circle.

I thought that I could finally understand what had happened and how it could happen, but my conclusion had been that it could only happen if there was no judgment and the lien was a pre-judgment remedy.

Have you looked at the court file? Do you know that a judgment was entered, as opposed to an attachment being allowed and possibly a default entered? (It's possible to get a default without getting a default judgment.)

If there is a judgment, I have no idea what case it was that the judge dismissed. Absent a pending appeal, there should be nothing to dismiss post-judgment. The case is disposed by judgment.

It follows that I can't speculate on the status of the lien. Perhaps another member will see and understand this better.

 

[mgeoghan]

So today I got 2 letters from the attorney who sued me. The first one is to the court that says, "Please dismiss the Supplementary Process Action and return the Writ of Execution to this office"

The second letter returned the check I sent to him and that was addressed to me. It said, "Enclosed please find your check in the above entitled matter. Please be advised this office no longer represents the creditor on this matter."

I have no idea what either of those mean.

 

[Chien]

This really gets no better.

The second letter means the attorney either was fired or withdrew. If there was a balance still owing, why the payment wasn’t applied and the proceeds sent to the creditor is beyond me.

The first letter references a writ of execution, which could confirm your conviction there was a judgment but is not incompatible with a pre-judgment right to attach.

OP – I had given up hope of figuring out what had transpired and you weren’t getting additional responses. I still think it’s incumbent for you to review the court file. In addition to telling you what case it was that was dismissed, it should now tell you whether there is no longer an attorney or whether he has been replaced.