[robyngar]

My husband and I recently took our x landlord to court for not paying us our security deposit. She counterclaimed that we had ruined her floors and should pay for it. The magistrate ruled in our favor, dismissed her counterclaim and ordered her to pay us $2.040 by Dec 3. We got a letter from her to vacate the judgement on the ground that the court did not allow her to present any testimony in support of her counterclaims (she brought pictures of the floor, but neglected to bring statements from the bank which held our security deposit, (which we never received a copy of)) The case was already heard, I assumed that vacating judgements was for those who failed to show up in court to begin with. The magistrate has already heard our case. What is the likelihood that they will let her plead it again?! UGH

[ScottGem]

What she is doing is filing an appeal. She is filing the appeal on the grounds that she was not allowed to properly present evidence. If the appeals court rules that she was not, they will vacate the judgement and order a new hearing.

So it all boils down to why the magistrate dismissed her counterclaim. Now many states have a time frame by which the landlord has to either return the deposit or an itemized statement of what the deposit was used for. If the landlord fails to do so within the allotted time, they forfeit the right to use the deposit for repairs. So, if that's why the magistrate refused to view her evidence, the appeal will be turned down. Otherwise, I can't tell for sure.

[robyngar]

Basically the magistrate dismissed because she didn't come to the court prepared. When he asked her if she had the statements holding our security deposit, she said she didn't, because "she didn't realize she had to bring them". Just like she "didn't realize she had to give us a copy of them" Being that the landlord/tenant laws are pretty strict in MA, I think he found it pretty hard to believe that she didn't know she had to provide us with copies of those statements. Also, I think that decided the case. She never gave us copies, period. So whether she has them or not is a moot point, we never got them, nor did we get our security deposit back within the 30 day allotted time. She basically tried to screw us from the beginning anyhow. We were only there for 2 months when she told us she was going to sell and we'd have to move...

[excon]

Hello robyngar:

There's also a time frame in which she has to file her motion to vacate and/or appeal whatever it is. Plus, it has to be based on a ruling made by the magistrate that was contrary to law - not just because she doesn't agree with his decision.

Her case was dismissed because she couldn't prove it. Yes, she couldn't prove it because she didn't bring evidence. The dismissal sounds perfectly within the judge's discretion to do. Based upon what you've told us, she'll lose.

However, be forewarned. This lady ISN'T about to pay you willingly. Unless she's been given a STAY of execution, which she would have to move the court to grant, I would EXECUTE your judgment as quickly as possible.

Take your judgment to the sheriff or the bailiff or the constable of the court (whatever they call them in your jurisdiction), and hire him to get your money. It would help if he knew where her bank accounts and other liquid assets were.

excon

[robyngar]

Thank you! How long does it usually take to do this, and is it costly? I knew she was going to pull some bs with us, she's a coy one...

[excon]

Hello again, robyngar:

Nahhh. They're public servants. They'll charge milage and an hourly fee. But, when they show up in their uniforms with a gun strapped on, they're HARD to refuse. If she has cash at home, send 'em there.

How long? If you go today, and they go today, her bank account will be frozen tomorrow.

excon

[robyngar]

One more question, we got notice today that we have to go back to court because well, in reality like I said, she didn't like the outcome and she didn't bring proper paperwork with her the first time so she wants a re-trial... I want to go just to laugh her out of the courthouse... but will sending a constable now do any good? Or should I wait until after the court date?

[excon]

but will sending a constable now do any good? Or should i wait until after the court date?

Hello again:

If you have a judgment, and it has not been stayed, then it's valid TODAY. If you want to wait, that's on you. I wouldn't.

excon

[ScottGem]

You need to determine, as excon, noted whether there has been a stay issued on the judgement. The court clerk can tell you. If one has not be issued, then you can execute the judgement and attach her assets. (if you paid her by check, your cancelled checks should show the account they were deposited to). You should not wait if you can execute the judgement.

[robyngar]

You need to determine, as excon, noted whether there has been a stay issued on the judgement. The court clerk can tell you. If one has not be issued, then you can execute the judgement and attach her assets. (if you paid her by check, your cancelled checks should show the account they were deposited to). You should not wait if you can execute the judgement.

Thank you, you've both been extremely helpful. I will go to the courthouse tomorrow and ask if there has been a stay issued. I'm just curious as to why I need an acct number? She has been ordered to pay us treble damages (which when all added up is $2,040 by December 3rd. My guess is she's jerking us around by filing this motion. She's a tool... (sorry) I'm just so angry about this whole thing...

[ScottGem]

Umm, Small Claims court does not work like The People's Court. After the judge rules you don't go sign some paperwork and get a check. When you are awarded a judgement and she is ordered to pay, but nothing is keeping her from walking out of the court and stiffing you. In most small claims cases, the winner still has go and collect. Usually this means attaching a bank account or garnishing a salary.

[robyngar]

You need to determine, as excon, noted whether there has been a stay issued on the judgement. The court clerk can tell you. If one has not be issued, then you can execute the judgement and attach her assets. (if you paid her by check, your cancelled checks should show the account they were deposited to). You should not wait if you can execute the judgement.

The clerk at the courthouse is saying she's not sure she can even answer that question? YIKES

[excon]

Hello again, robyn:

Your question should have been, "has there been a stay issued?". You should NOT have asked anything about executing your judgment. The clerk should NOT be your sounding board for LEGAL advice. I guess that's Scotts and my job.

The answer to your question can be ascertained by LOOKING at the file. You don't even need the clerk to do that. If there's a STAY in there, then there is. If there's a MOTION for a stay, and no ORDER, then there ISN'T a stay. However, I highly doubt there's even a motion.

I would NOT call, but instead I would personally GO to the courthouse. Physically LOOK at the file. Then WALK up to the bailiff's office and hire him. I would do that right now. Don't talk to the dufus clerk anymore.

excon

[robyngar]

Hello again, robyn:

Your question should have been, "has there been a stay issued?". You should NOT have asked anything about executing your judgment. The clerk should NOT be your sounding board for LEGAL advice. I guess that's Scotts and my job.

The answer to your question can be ascertained by LOOKING at the file. You don't even need the clerk to do that. If there's a STAY in there, then there is. If there's a MOTION for a stay, and no ORDER, then there ISN'T a stay. However, I highly doubt there's even a motion.

I would NOT call, but instead I would personally GO to the courthouse. Physically LOOK at the file. Then WALK up to the bailiff's office and hire him. I would do that right now. Don't talk to the dufus clerk anymore.

excon

I did ask if there was a stay issued, she said "what do you mean"? I said, has there been a stay issued on our judgement... she said she had to ask the clerk that and she was in court, to call back... but I will go to the courthouse myself. Although I'm not sure what good that will do me if the clerk is in court?

[excon]

I will go to the courthouse myself. Although i'm not sure what good that will do me if the clerk is in court?

Hello again, robyn:

Like I said, you don't NEED the clerk to SEE your file. It's public record. BYPASS the clerk. Oh, I suppose you need to request the file at the clerk's window, but there's got to be somebody manning the window even though the official court clerk is in court.

Maybe that's the problem. There's an "official" court clerk. There's only one. HE, however, isn't the guy who mans the window or windows (depending on the size of the courthouse). And, it really doesn't matter anyway. Just ask to see the file. DON'T ask questions.

I can't believe the window is closed during normal business hours. Isn't the clerk in court every day?

excon

[robyngar]

Hello again, robyn:

Like I said, you don't NEED the clerk to SEE your file. It's public record. BYPASS the clerk. Oh, I suppose you need to request the file at the clerk’s window, but there's got to be somebody manning the window even though the official court clerk is in court.

Maybe that's the problem. There's an "official" court clerk. There's only one. HE, however, isn't the guy who mans the window or windows (depending on the size of the courthouse). And, it really doesn't matter anyway. Just ask to see the file. DON'T ask questions.

I can't believe the window is closed during normal business hours. Isn't the clerk in court every day?

excon

Done deal, thanks, I'm on my way to the courthouse.

[robyngar]

done deal, thanks, i'm on my way to the courthouse.

Mr. Ex... I was just looking at my judgement, and it says the court has issued a PAYMENT ORDER ordering the defendant to paya the total amount by 12/3/07.

I'm assuming that order is still in effect even though she wants to vacate the judgement?

Just asking because I'm also assuming the courthouse has the same documents as I do?

[robyngar]

Also, the judgement was entered on November 2nd and she had 10 days to appeal. She didn't ask the court to vacate the judgement until November 21st. Wouldn't that make all of this null and void?

[excon]

Mr. Ex...ordering the defendant to paya the total amount by 12/3/07..... I'm assuming that order is still in effect even though she wants to vacate the judgment? Just asking because I'm also assuming the courthouse has the same documents as I do?

Hello again robyn:

I thought you were on the way... By the way, Mr. Excon was my dad. I'm just plain ol excon.

Yes, I'm assuming your documents are the same as those in the courthouse. Of course, something could be in the mail. That's why you need to LOOK. The courthouse file is the "official file". What's in there, is what's happened.

By the way, the 3rd was 3 days ago. Did you get paid?

As an interesting aside. I have never seen a judgment that gave a PAY BY date. The only judgments I've seen are those that award PAYMENT - period. Soooo, I'm wondering if you even HAVE a real judgment...

excon

[excon]

Also, the judgement was entered on November 2nd and she had 10 days to appeal. She didn't ask the court to vacate the judgement until November 21st. Wouldn't that make all of this null and void?

Hello again, robyn:

Yes. GO GET YOUR MONEY!!

excon