didn't recieve mail II

[owotop]

Since I recieved no replies to my previous posting let me rephrase. Who's responsibility is it to insure that a person is notified of a court date? The court sent out the notice but the defendant claims that he never recieved it. Since he had sent in a counterclaim he had to be expecting a court date. Is it the defendant's responsibility to inquire? Can I place the blame on him (I am 100% sure he is lying anyway) for not being responsible enough to find out himself about the court date? Or is not recieving the mail (true or untrue) a valid argument? I want his hiring of a lawyer to pursue this to be a waste of money and time for both himself and the courts so he doesn't pull this stunt again. I am bringing another claim against him soon for the remainder of the money he owes me.

 

[I AM ALWAYS LIABLE]

Since I recieved no replies to my previous posting let me rephrase. Who's responsibility is it to insure that a person is notified of a court date? The court sent out the notice but the defendant claims that he never recieved it. Since he had sent in a counterclaim he had to be expecting a court date. Is it the defendant's responsibility to inquire? Can I place the blame on him (I am 100% sure he is lying anyway) for not being responsible enough to find out himself about the court date? Or is not recieving the mail (true or untrue) a valid argument? I want his hiring of a lawyer to pursue this to be a waste of money and time for both himself and the courts so he doesn't pull this stunt again. I am bringing another claim against him soon for the remainder of the money he owes me.

My response:

It's your responsibility as the Plaintiff to prove to the court that he was served with Process. Therefore, in order to remove "deniability", have a Process Server (Attorney Service) serve him personally. That way, you'll have a "Proof of Service" declaration that you can file with the court. It will cost you, but look at the time that's being wasted.

Your second issue is more important; i.e., "I am bringing another claim against him soon for the remainder of the money he owes me."

If ALL of the money he owes you is from a SINGLE transaction, you can't "split" the amount and sue him twice. If the amount he owes is more than Small Claims court allows, then you must sue him in the next higher court. Jurisdiction is important here, and whether you win or lose in Small Claims court, if you sue him again over the "balance owed" - - no matter which court you choose, he can win on the theory of "Res Judicata" and have your second lawsuit dismissed.

So, sue him for the entire amount in the court that has Jurisdiction of the total amount of money owed to you.

IAAL

 

[owotop]

Thanks for the reply-

I agree that you have the correct method for serving the next time. But is there anything I can do THIS time now that the damage is done. Do I have to go thru the small claims court process that I already won now that the defendent has decided that he didn't get notified properly? The state of CT has a "no appeal" policy on small claims. Is the "set aside" motion filed by the attorney considered an appeal? Once again, is it the responsibility of the defendent to check with the court himself and be aware of the hearing that he, himself, requested thru the counterclaim?

Also, the other suit I am referring to addresses the amount of back rent built up after I filed the original claim plus lawyers fees required to evict him.

 

[HISGIRLONLY]

I live in georgia, and had a similiar situation...on my scheduled court date, the defendant did not show..so, the judge heard my case, I provided evidence, and was awarded the entire amount i requested, despite the fact the defendant was untruthful in her answer, stating she only received a much smaller amount as a loan to her.
the judge awarded me the judgement by default. while at court, i filed an order to have her wages garnished...the defendant and her job were both served, and she filed a traverse, trying to stop the garnishment. we went to court on yesterday,
while we were outside the courtroom in the mandatory settlement phase, the juge had the clerk come to get us both and he told the defendant i have already received the default judgement because she was not there, and he would not hear the case because of the oldest excuse"i didn't receive the court date! he dismissed her traverse, and i was granted the garnishment!!! You have a good chance!

 

[owotop]

Thanks for the moral boost. But isn't it completely up to the discretion of the judge? Doesn't sound like something I can count on. Is there some kind of legal precedent to get the (as you put it) oldest excuse "I didn't receive the court date" thrown out? Is the "set aside" filed by the ex-tenant's lawyer considered an appeal?

 

[JackieTroll]

to set-aside a verdict is not an appeal. It is done to state there was a gross injustice in the process.