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How to appeal Motion for Relief from Judgement Denial if Court Ruled in Error?


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I filed a Motion for Relief from Judgement after finding out about the judgement when my employer received the garnishment request. I was never served because everything was sent to an address I hadn't lived at for years. I filed the motion stating Ohio Civil rule 60(B)(5) which states (see below) "within a reasonable amount of time". I feel that I filed with in a reasonable about of time from finding out about the judgement from my employer. I stated this in my Motion (and also provided proof of address showing I did not live there) but the judge denied it stating it was not with in one year from the judgement decision. It is true it is outside the one year, but since I filed against 60(B)(5) this would not be a valid reason to deny the motion. I was just wondering if anyone has run into this before and could offer any suggestion on how to appeal this. Thank you!

 

60(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

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You can file a motion to reconsider, but you'll probably lose that as well. They figure that one year is enough time for you to find out about this. All the possible excuses are listed, and most fall under the one year rule. You could mention reason 5, any other reason justifying relief from the judgment, and cite the fact you were never properly served. Go to the court house, get the file, and get the documents filed by the process server perfecting service. See what they say. If the server lied, you may have a better shot at this. You may need a lawyer for this, it's borderline because of the time frame. You may be able to sue the process server as well.

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I did mention reason 5 and cite I wasn't served in the original motion. I provided proof of address for that time. The items that were sent to me at the time were returned to the court by the post office so it is pretty obvious I did not receive them. I will research motion to reconsider.

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You need to stop banging your head against the trial court wall. You can appeal the ruling and you can file a Writ of Mandamus. The appeal is for both the default judgment and the denial of the motion to vacate. The writ of mandamus is for the the motion to vacate. you can file the appeal if it is within 30 days from the the motion to vacate denial. Same with the writ.

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The writ of mandamus is for the the motion to vacate.

 

Writ of mandamus is order requiring lower court (or some subordinate entity) to perform some ministerial duty it is required by law to perform. Granting a motion to vacate judgment is not one of those duties. I would not recommend attempting that.

 

Marbury v. Madison, 5 U.S. 137 (1803)

 

A "strictly ministerial duty" is defined as: "A duty that is absolute and imperative, requiring neither the exercise of official discretion nor judgment." City of Memphis v. Shelby Cty. Elec. Com'n., 146 S.W.3d 531 (Tenn. 2004)

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On my argument the case for Writ would be that failure of notice to defend would strip the court of subject matter jurisdiction. Without jurisdict, the courts order and judgment would be void. a void judgment can be attacked at anytime by any means any where. This would be a collateral attack on the judgment.

 

Appeal can go for direct attack of the judgement. If the court rendered a default judgment then it is fully legal to vacate and allow a defense.

 

If the OP doesn't have time to appeal then I think Claim of Exemption would be a way to try to minimize the wage garnishment.

 

If this was an OC suing it might be better to not try to go down the appeal rabitt hole and try settlement and maybe BK to allow round 2 on their claim.

 

also if you are daring you could file a complaint in the arbitration formum for breach of contract, failure to serve notice and summons(FDCPA violations) and whatever.

 

Maybe the arbitrator can void the courts order.

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but the judge denied it stating it was not with in one year from the judgement decision.

 

You should have argued that the Doctrine of Delayed Discovery would negate the one year statue of limitations imposed by the rule.

Doe v. United Methodist Church,673 N.E.2d 839
 which provides that `[a] cause ofaction accrues, and the statute of limitations begins to run, when the plaintiff(or defendant in your case) knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another.

 

Barnes v. A.H. Robins Co., Inc.
The rule is based on the reasoning that it is inconsistent with our system of jurisprudence to require a claimant to bring his cause of action in a limited period in which, even with due diligence, he could not be aware a cause of action exists.

 

The doctrine does not have to be intentional, it can be because the other party failed to perform their duty.

 

There is also another doctrine that can be used to bar a statute of limitations. This doctrine is called the doctrine of fraudulent concealment.

Under the Federal doctrine of fraudulent concealment, the statutory limitations period will begin to run when the cause of action is discovered, or should have been discovered, by the exercise of due diligence. What one must plead and show to establish fraudulent concealment depends on the circumstances of each case. In actions not based on fraud, the plaintiff must plead with particularity and show (1) fraudulent concealment by the defendant; (2) the ignorance of the plaintiff as to the cause of action prior to the running of the limitations period before the commencement of the suit; and (3) that once on notice of the possible cause of action, the plaintiff exercised due diligence in discovering the facts of the claim. In actions based on fraud, the plaintiff need not plead fraudulent concealment if the concealment claim is based on the substantive fraud because the defendant is on notice of the fraud claim. When the defendant claims that the statute of limitations bars the suit, the plaintiff must establish the last two aforementioned elements. If the concealment does not involve the substantive fraud, the plaintiff must establish all three elements. For all types of cases, leave to amend is liberally granted with few exceptions.

 

These are normally used when the other party tries to bar your claim because of the statute of limitations, but when there is a trial rule that states a time frame of one year that is not only a rule it is also a statute of limitations. 

 

Another useful tool to bar the statute of limitations is the doctrine of continuing wrong.

 

Frady v. Hedgcock (1986)
When an entire course of conduct combines to produce an injury, the conduct may constitute a continuing wrong so as to delay the running of the statute of limitations.

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Writ of mandamus is order requiring lower court (or some subordinate entity) to perform some ministerial duty it is required by law to perform. Granting a motion to vacate judgment is not one of those duties. I would not recommend attempting that.

 

Marbury v. Madison, 5 U.S. 137 (1803)

 

A "strictly ministerial duty" is defined as: "A duty that is absolute and imperative, requiring neither the exercise of official discretion nor judgment." City of Memphis v. Shelby Cty. Elec. Com'n., 146 S.W.3d 531 (Tenn. 2004)

Writ proceedings are allowed to attack void orders. In my state they call it a Petition for Review but it is a procedure to make the court either vacate or show cause why not. So it is something that can be done because the Motion to vacate denial is a final order. The court not vacating and allowing a defense on review will by under the abuse of discretion standard.

 

I find it weird that the court wouldn't allow  to defend. I have read authorities that show for good cause the rule 60 factors have a catch all provision 60(5) with no timr limit.

 

I don't feel personally that any of this will work as the state of ohio is very pro creditor and also that post judgment actions are tough to overturn. I merely present options that can be taken.

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I find it weird that the court wouldn't allow  to defend. I have read authorities that show for good cause the rule 60 factors have a catch all provision 60(5) with no time limit.

 

I don't feel personally that any of this will work as the state of ohio is very pro creditor and also that post judgment actions are tough to overturn. I merely present options that can be taken.

 

You folks seem to be assuming the record contains no evidence of service when there is nothing to suggest that. You're all overlooking the service by publication angle; very popular with debt collectors in Ohio. We don't know for sure, because the o/p apparently hasn't shared with us the entire court record, but if so, there would be no merit to the argument that "I wasn't served" if service was by publication (which is probably the case). If so, of course the defendant wasn't served (personally). That's the whole idea behind service by publication; it's allowed because defendant cannot be served through conventional means.

 

Remember what the o/p told us,  "I was never served because everything was sent to an address I hadn't lived at for years. . ."The items that were sent to me at the time were returned to the court by the post office so it is pretty obvious I did not receive them." Just because process was sent by mail and she did not receive it does not warrant the conclusion that, "I was never served," unless you can also say there was no service by publication. She did not say that.

 

Fact is, if the court file contains nothing but items that were returned as undeliverable, it is extraordinarily unlikely that the court would have entered judgment. However, the undelivered mail are the very items that would support the affidavit plaintiff's counsel would file when effecting service by publication. 

 

The o/p's better argument would have been to argue that plaintiff failed to make reasonable attempt to locate her and that had plaintiff done so, she could have been easily located. See First Bank of Marietta v. Cline, 12 Ohio St. 3d 317 (Ohio 1984) ([M]inimal effort cannot be said to be reasonable diligence, and therefore service by publication was not proper.)

 

For what it's worth, I do think the judge misspoke when he attributed the one-year time frame to 60b5, and if the o/p's argument was something more meritorious than "I wasn't served," his ruling would probably be reversed on appeal.

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But it if was mailed the post office should have sent it to his new address if he filed change of address with the post office.

 

That it why I told him to use the discovery rule to beat the sol for the one year. Every state recognizes the doctrine of delayed discovery. He also should have been served a notice of garnishment and had his day in court and been able to file his exemptions.

 

Along with the doctrine of delayed discovery you also use the doctrine of fraudulent concealment, which states that it does not have to be intentional,. fraudulent Concealment is an equitable doctrine which operates as a bar to . . . a claim when the defendant(or the plaintiff in his case) by his own actions,prevents the plaintiff(or defendant)  from obtaining the knowledge necessary to pursue a claim. When this occurs, equity will toll the statue of limitations until the equitable grounds cease to exist to operate as a reason for delay.

 

The you use use the doctrine of continuing wrong also. When an entire course of conduct combines to produce an injury, the conduct may constitute a continuing wrong so as to delay the running of the statute of limitations.

 

Every state recognizes these three claims to bar the sol.

Indiana case law

Under Indiana law, the discovery rule provides that the statute of limitations begins to run on a cause of action when "the plaintiff
knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another." Horn v. A.O. Smith Corp., 50 F.3d 1365, 1369 (7th Cir.1995); Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840, 843 (Ind. 1992); Doe v. United Methodist Church, 673 N.E.2d 839, 844 (Ind.Ct.App.1996)

 

The biggest case in Indiana that used these three was Landers v Wabash Center,Inc.

 

Most states follow the same lines as Indiana with very few differences, some States are even more relaxed than Indiana.

 

Ohio case law

This is an asbestos case but it still shows how to apply the delayed discovery doctrine.

O'Stricker v Jim Walker Corp

held that the discovery rule applies in cases where a strict application of the statute of limitations would lead to an unconscionable result. The court also stated; Having determined that plaintiff's cause "arose" at some time after his exposure to asbestos, it remains to formulate the appropriate rule of accrual. In doing so, this court has the benefit of the many other decisions reached in similar cases in other jurisdictions. Moreover, we are instructed by the General Assembly which in its 1980 amendment adopted a "discovery rule" defining a cause to arise at discovery of the injury and discovery of the cause thereof. When an injury does not manifest itself immediately, the cause of action arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured, whichever date occurs first.
 
Amer v. Akron City Hospital (1976),
"Justice in this case cries out for a remedy. How can anyone be precluded from asserting a claim by a statute of limitations which expires before the discovery of the injury? How can anyone charged with the responsibility of administering justice allow such an absurdity.
 
 
 

 

 

 

 

I would file a whole new case against the Plaintiff.

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But it if was mailed the post office should have sent it to his new address if he filed change of address with the post office.

 

Wouldn't that tend to indicate o/p did not leave much of a trail when she moved, thereby making it more difficult for her to be located?

 

As for the other stuff, you've gone way off track. You're either seriously misunderstanding what you're reading, or your sources are sorely inaccurate.

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I meant to take the whole new case out but I didnt.....sorry.

 

You need to file an appeal, at this moment in time the judge will not reverse unless the higher court remands the case back to him.

 

Lack of service is not the strongest argument you have, but you dont have much else.

 

The late scholar Karl Llewellyn wrote that “the rule follows where its reason leads; where the reason stops, there stops the rule. Professor Llewellyn’s point is quite simple and abundantly relevant in all areas of the law: when a rule is created for certain reasons, and those reasons cease to exist, the rule should no longer be applied. Courts have utilized Professor Llewellyn’s axiom in various areas of the law, refusing to apply rules to situations in which the reasons justifying the rules are no longer present.
 
delayed accrual, occurs when the plaintiff(or defendant) lacks sufficient knowledge of the facts to file the case and depends on the circumstances. A cause of action accrues when the act is completed and there is a result for which there is liability.
 
Your court rule says one year, but you did not learn about it until the one year had expired. You were not informed of the garnishment due to failure to be served, When your employer told you about the garnishment you then discovered the cause of action.
 
discovery occurs when the plaintiff suspects or has reason to suspect a factual basis. In a delayed
discovery case, the party must plead that the relevant facts were not and could not be discovered
with reasonable diligence within the statutory period.
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The discovery rule to which you're referring has to do with the statute of limitations for a cause of action in order to file a complaint. 


 

delayed accrual, occurs when the plaintiff(or defendant) lacks sufficient knowledge of the facts to file the case and depends on the circumstances. A cause of action accrues when the act is completed and there is a result for which there is liability.

 

A defendant does not file the case.  The cause of action is brought by the plaintiff. 

 

 

Your court rule says one year, but you did not learn about it until the one year had expired. You were not informed of the garnishment due to failure to be served, When your employer told you about the garnishment you then discovered the cause of action.

 

The one year time limit in Rule 60(B) might not be considered the same type of statute of limitations as one for a filing a complaint. 

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I understand what it is, I am trying to make a point that the OP did not know or discover until his employer informed him. That is delayed discovery.

 

I know delayed discovery is normally used to beat the statute of limitations on filing a law suit.

 

But what is a rule of trial procedure that says you only have a certain amount of time to respond, it is a SOL that is imposed by a rule. Since the OP has waited past the one year time period, not due to his own negligence, we have limited resources to fight the courts decision. This is a continuing wrong, it is fraudulent, due to the plaintiffs actions , would be hard to prove intentional. It is also a delayed discovery of what happened. He need more ammo than just "I was not served."

 

I am trying to get you guys thinking a way to defeat a rule that gives a person no recourse when he/she finds out too late, and not of his own fault, that a plaintiff has misused the system to gain a ill gotten advantage. We have to stop these tatics that some attorneys use.

 

If he was served the original suit and answered then the attorney knew where to serve him. But the attorney pulled a fast one and served him at a residence he does not reside and i say the attorney knew it, but used that fact to gain an advantage. Proving it would be hard. So we need to look to other possible resources.

 

I see nothing that says that these doctrines can ONLY be used to file a late discovered suit. If applied right they could be used in situations like this one, and we all know that this happens a lot to defendants. The rules do not gives us an avenue of approach to help when this happens, they impose a rule, or a SOL, but do not give defendant any rule that says if we fond out too late we can do some thing to fight it. The rule just say if you are too late it sucks to be you.

 

So, like I said if the court rules themselves do not give any rule we can apply to these situations we have to think outside the box.

I have found no case law the states this doctrine ABSOLUTELY has to be used to toll a statute of limitation to FILE a suit, nor have I found any case law that says in can not be applied in order to defeat a rule of trial procedure, when in all essence is a statute of limitations. I have found no case law that says this doctrine can not be used in a suit that is ongoing and you are the defendant. 

 

There are not many options here. and we all know that a claim for lack of service is weak in the eyes of the court. I am tired of seeing consumers put in this situation where they have no recourse to the actions of a devious attorney.

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I am trying to get you guys thinking a way to defeat a rule that gives a person no recourse when he/she finds out too late, and not of his own fault, that a plaintiff has misused the system to gain a ill gotten advantage. We have to stop these tatics that some attorneys use.

 

I don't doubt your intentions are well placed, but suggesting misplaced legal alternatives which, accordingly, have no chance of success, helps no one. In fact, if someone is convinced to use what is likely their one and only chance in court proffering Quixotic legal arguments, they're likely to end up worse than they started.

 

I would submit to you that there is no "tactic" a debt collection attorney can employ that cannot be successfully countered by an appropriate response. It just so happens that, in most cases, those "appropriate responses" are typically not known to the average consumer. Finally, we also have to realize that, in some cases, the debt collector gets paid not because he has used some underhanded tactic, but simply because he's stumbled upon a consumer who actually owes money and has the ability to pay it. 

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