Nuti4Law Posted March 22, 2012 Report Share Posted March 22, 2012 (edited) :)What do I need to file to get my money back. Case management meeting today. This is an SOL and should be thrown out today...hopefully. Already filed answer. JDB acting like it's their money. If it goes to trial is there a motion I need to file. I won already by getting judgment set aside and I did ask for stay of writ. Thank you seadragon for your help in the 1st stage of this adventure. Very informative. Forgot I live in Arizona JDB filed in CA where I own property. I proved I was never served. 473.5 Edited March 22, 2012 by Nuti4Law Link to comment Share on other sites More sharing options...
jq26 Posted March 22, 2012 Report Share Posted March 22, 2012 (edited) So that we're all clear- you got the judgment set aside but the JDB has already garnished your account? Send a demand letter to the JDB with a copy of the order setting aside the judgment requiring full reimbursement within five business days. See if you can fax it to their legal department. They have no legal right to any proceeds without the underlying judgment (you probably know that already but reinforcing that point).If they do not fully reimburse you immediately, I'd go on the offensive and file suit for conversion.After rereading your post, it sounds like the JDB refiled suit after the judgment was set aside. So now this thing is being relitigated? If so, make the court aware that the JDB has secured your funds prior to the legal right. You shouldn't have to bring any motion because they shouldn't have it in the first place. If anything, a motion for sanctions may be appropriate. In most states, you can't seize property ahead of trial. And in states where this is allowed, you have to jump through 20 hoops and have an order of the court. This JDB doesn't have permission! Edited March 22, 2012 by jq26 Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted March 22, 2012 Report Share Posted March 22, 2012 Make a motion with the Court to have the funds returned. One of two things will happen. The Court will rule that you get your money back, or they will rule that the money is to be kept in escrow until the litigation is over. Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted March 22, 2012 Report Share Posted March 22, 2012 After rereading your post, it sounds like the JDB refiled suit after the judgment was set aside. So now this thing is being relitigated? Negative. It more sounds like there was a judgment against the OP, JDB garnished a bank account when the judgment was in effect, and then the OP got the judgment set aside after the funds were taken. Set aside =/= case dismissed. The Court allows the defendant to file their answer and have the case litigated on the merits. Link to comment Share on other sites More sharing options...
jq26 Posted March 22, 2012 Report Share Posted March 22, 2012 I got that part, but then the OP says something about case management and potential upcoming trial. Trial for what if judgment is already set aside? Link to comment Share on other sites More sharing options...
maggie22 Posted March 22, 2012 Report Share Posted March 22, 2012 Sounds like the court just set aside the default judgment. In this situation, the case still remains active, just with the default removed. Happens all the time, and does not equal a dismissal. Link to comment Share on other sites More sharing options...
jq26 Posted March 22, 2012 Report Share Posted March 22, 2012 That makes sense. See, I learn something new everyday. Link to comment Share on other sites More sharing options...
KentWA Posted March 22, 2012 Report Share Posted March 22, 2012 I would bring this up at case management. Tell the judge you are expecting to have to file a motion for disgorgement of funds and sanctions as the Plaintiff is refusing to return funds they improperly garnished. Your filing a motion is an appropriate topic of discussion at case management and the judge is likely to not look kindly on the plaintiff for the possible waste of judicial time and tell them to cough up the money. Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted March 22, 2012 Report Share Posted March 22, 2012 I got that part, but then the OP says something about case management and potential upcoming trial. Trial for what if judgment is already set aside?In some places, there is a very pro-plaintiff policy of not forcing the plaintiff to file a lawsuit twice - even if the service was bad. I spoke to a law clerk who said the reason why judges do that is because they do not want to penalize the plaintiff for bad service when most likely the plaintiff hired a 3rd party process server who did not do the job properly.So what will happen is that the defendant will request that the judgment will be set aside, or vacated. In exchange the defendant is allowed to file an answer, proceed with trial, and they agree to waive any jurisdictional defenses and have the case heard on the merits.Now in this type of case where money is taken on a garnishment and the judgment is set aside thereafter, I've seen two things happen - either 1) the judge forces to the plaintiff to return the money or 2) the judge will order the money to be held in escrow and whoever is the prevailing party then receives the money after trial. Link to comment Share on other sites More sharing options...
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