vamil93 Posted November 13, 2012 Report Posted November 13, 2012 I have been sued by a creditor in small claims court in Indiana. I currently live in Virginia. Have not lived in Indiana for a few years. The plaintiff is a doctors office.The court date is Dec. 13th. There is no way I can make it to Indiana for this hearing. The way I see it my options are:1. Ask for a continuance, although chances are slim I could afford to go at any point.2. Miss the date and get a default judgement. From what I have read, this would probably be impossible to enforce this judgement, but it would be on my credit report for 10+ years.There is an outside chance that I could afford to pay a lawyer in Indiana in January to represent me. The amount they are seeking with attorney fees is about $1000 (yes, they have an attorney representing them).Thank you for any help offered.
BTO429 Posted November 13, 2012 Report Posted November 13, 2012 Since you live in another state how were you served....?File a motion to dismiss for improper venue.Indiana rules of trial procedure.Rule 75. Venue requirements(A) Venue. Any case may be venued, commenced and decided in any court in any county, except, that upon the filing of a pleading or a motion to dismiss allowed by Rule 12((3), the court, from allegations of the complaint or after hearing evidence thereon or considering affidavits or documentary evidence filed with the motion or in opposition to it, shall order the case transferred to a county or court selected by the party first properly filing such motion or pleading if the court determines that the county or court where the action was filed does not meet preferred venue requirements or is not authorized to decide the case and that the court or county selected has preferred venue and is authorized to decide the case. Preferred venue lies in:(1) the county where the greater percentage of individual defendants included in the complaint resides, or, if there is no such greater percentage, the place where any individual defendant so named resides;
vamil93 Posted November 13, 2012 Author Report Posted November 13, 2012 Since you live in another state how were you served....?File a motion to dismiss for improper venue.Indiana rules of trial procedure.Rule 75. Venue requirements(A) Venue. Any case may be venued, commenced and decided in any court in any county, except, that upon the filing of a pleading or a motion to dismiss allowed by Rule 12((3), the court, from allegations of the complaint or after hearing evidence thereon or considering affidavits or documentary evidence filed with the motion or in opposition to it, shall order the case transferred to a county or court selected by the party first properly filing such motion or pleading if the court determines that the county or court where the action was filed does not meet preferred venue requirements or is not authorized to decide the case and that the court or county selected has preferred venue and is authorized to decide the case. Preferred venue lies in:(1) the county where the greater percentage of individual defendants included in the complaint resides, or, if there is no such greater percentage, the place where any individual defendant so named resides; Thanks for the reply. I was served via mail with return receipt. I received a copy from the Clerk and also from the attorney representing the creditor. This is for Lake County where I used to live and where the doctors office is located. They included an affidavit of debt and a signed patient registration form. The date for account opening on the affidavit of debt does not match the date on the patient registration form by several months.
BTO429 Posted November 13, 2012 Report Posted November 13, 2012 All that evidence is irrelevant at this point,,they are suing in the wrong court,,,that court does not have jurisdiction over you.They will refile in your county, but at least you will be able to defend the case that way.
vamil93 Posted November 13, 2012 Author Report Posted November 13, 2012 All that evidence is irrelevant at this point,,they are suing in the wrong court,,,that court does not have jurisdiction over you.They will refile in your county, but at least you will be able to defend the case that way.They will refile in another state? I do not live in Indiana, and have not resided there in over 3 years. I have not property there and no personal connections. The county in which I lived was Lake County, and that is where the doctors office is located as well, and it is where they have filed suit. Do I still file a motion as you suggested?
BTO429 Posted November 13, 2012 Report Posted November 13, 2012 Yes,,,what I was trying to tell you is when then motion is ordered from the court to dismiss they will refile in the state you now live in,,,,it will make it easier for you to defend it. They may just leave it alone since it is so far away but I can not guarantee that.
vamil93 Posted November 13, 2012 Author Report Posted November 13, 2012 Yes,,,what I was trying to tell you is when then motion is ordered from the court to dismiss they will refile in the state you now live in,,,,it will make it easier for you to defend it. They may just leave it alone since it is so far away but I can not guarantee that.The Indiana small claims rules states:Proper venue for a case filed in the small claims docket of a Circuit, Superior, or County Court shall be in the county where the transaction or occurrence actually took place or where the obligation was incurred or is to be performed, or where one of the defendants resides or has his or her place of employment at the time the complaint is filed.Does that not cover them for proper venue?
BrunoTheJDBkiller Posted November 13, 2012 Report Posted November 13, 2012 Rule 12. Venue(A) Proper Venue. Proper venue for a case filed in the small claims docket of a Circuit, Superior, or County Court shall be in the county where the transaction or occurrence actually took place or where the obligation was incurred or is to be performed, or where one of the defendants resides or has his or her place of employment at the time the complaint is filed.( Motion to Correct Venue. When it appears that the county in which the action is pending is not the proper place for the hearing of such action, the court shall, on the motion of a party or upon its own motion, determine the correctness of the venue. If the venue is incorrect the judge shall, at the option of the plaintiff, order the action to be transferred or dismissed without prejudice unless the defendant appears and waives the venue requirement.
vamil93 Posted November 13, 2012 Author Report Posted November 13, 2012 Rule 12. Venue(A) Proper Venue. Proper venue for a case filed in the small claims docket of a Circuit, Superior, or County Court shall be in the county where the transaction or occurrence actually took place or where the obligation was incurred or is to be performed, or where one of the defendants resides or has his or her place of employment at the time the complaint is filed.( Motion to Correct Venue. When it appears that the county in which the action is pending is not the proper place for the hearing of such action, the court shall, on the motion of a party or upon its own motion, determine the correctness of the venue. If the venue is incorrect the judge shall, at the option of the plaintiff, order the action to be transferred or dismissed without prejudice unless the defendant appears and waives the venue requirement.Thanks for the reply. Haven't they met the requirement by filing in the county where the obligation was incurred?
BrunoTheJDBkiller Posted November 13, 2012 Report Posted November 13, 2012 Yeah, but it's the wrong option considering where you live. You need to file the motion mentioned in the rules. They pull this all the time, they sue you where you can't appear and they get a judgment.
vamil93 Posted November 13, 2012 Author Report Posted November 13, 2012 Yeah, but it's the wrong option considering where you live. You need to file the motion mentioned in the rules. They pull this all the time, they sue you where you can't appear and they get a judgment.That is what I figured. I do not have the ability to even defend against this due to the distance involved, and my job and financial situation. Can you point me to an example of how to word this motion? Thanks again.
vamil93 Posted November 13, 2012 Author Report Posted November 13, 2012 Also, should it be a motion to dismiss due to improper venue, since I do not live in the state?
BTO429 Posted November 13, 2012 Report Posted November 13, 2012 MOTION TO DISMISSComes now the defendant, pro se, and files this motion to dismiss for the following reasons.1) Indiana rules of trial procedure Rule 12. Venue(A) Proper Venue. Proper venue for a case filed in the small claims docket of a Circuit, Superior, or County Court shall be in the county where the transaction or occurrence actually took place or where the obligation was incurred or is to be performed, or where one of the defendants resides or has his or her place of employment at the time the complaint is filed.The defendant does not live in or near where the alleged transaction took place and therefore cannot properly defend herself. According to rule 12, venue is also appropriate where the defendant resides. It would be more appropriate for the Plaintiff to have filed where the defendant lives. I attest to this fact under penalty of perjury.After reviewing the defendants motion to dismiss, it is hereby ordered and adjudicated thats this motion be __denied__grantedby order of the (put the court here) of _____ county in the state of Indiana by judge __________ on this __ day of ___, 20__.
vamil93 Posted November 13, 2012 Author Report Posted November 13, 2012 MOTION TO DISMISSComes now the defendant, pro se, and files this motion to dismiss for the following reasons.1) Indiana rules of trial procedure Rule 12. Venue(A) Proper Venue. Proper venue for a case filed in the small claims docket of a Circuit, Superior, or County Court shall be in the county where the transaction or occurrence actually took place or where the obligation was incurred or is to be performed, or where one of the defendants resides or has his or her place of employment at the time the complaint is filed.The defendant does not live in or near where the alleged transaction took place and therefore cannot properly defend herself. According to rule 12, venue is also appropriate where the defendant resides. It would be more appropriate for the Plaintiff to have filed where the defendant lives. I attest to this fact under penalty of perjury.After reviewing the defendants motion to dismiss, it is hereby ordered and adjudicated thats this motion be __denied__grantedby order of the (put the court here) of _____ county in the state of Indiana by judge __________ on this __ day of ___, 20__.Thank you BTO! 1. Do I need to send a copy to the plaintiff? 2. Do I need to send a fee to file the motion? 3. Do they notify me by mail of the result?4. Is there a deadline to file this sort of motion? I was served a few weeks ago.
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