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Plaintiff no show, fighting the dismissal


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                                                             (MA, Small Claims Court)

 

Sued by creditor small co. used personal guaranty. (Don't want to use there name or any more info about, them) 

 

Plaintiff sued and got court date (Recently) I did not show up, Plaintiff also did not show up.

 

The Plaintiff and I came to an agreement on our own that I could pay off my debt by providing services (Something that we have done for the past 4-5 years).

When ever my balance would get on the high side we would use services to pay the debt.

 

This year the Plaintiff: 

Long story short I performed the services and he complained and wanted a discount. So just before the court date is when he suggested we continue this year with my services and when my debt was paid off he was done with me I said ok.

 

So I never went to court, Also the Plaintiff did not show. A few days after we both did not show up the court sent us               "JUDGEMENT OF DISMISSAL"

 

The Plaintiff has changed his mind on the services deal and wants to refile the case.

 

Now the Plaintiff has filled a Motion to Reverse the Dismissal (Claiming he did not know the court date)

So the Mag. has set a hearing for there motion to reverse the Dismissal and go forward with there case.

 

I thought you needed a good reason to refile, Not just he was confused on the date or .....................

 

I'm going to answer the Motion. But was wondering can I file a Motion to stop there Motion hearing

 

For what it is worth I'm not disputing that I own the debt. And I thought we had an understanding. I had no reason to think otherwise based on past experiences bartering services.

 

Because he is being a snake all bets are off I'm now fighting.

 

Any suggestion for answering there Motion or advice on filling my own.       

 

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I would think all you need to do is answer the motion with the truth.  Plaintiff and I reached a settlement agreement prior to court date.  No need to outline the contents of the agreement, but point out that you and he were both aware of the court date, per your discussions thus neither party showed up.

 

Generally, rules of procedure govern when a dismissal of judgment can be re-opened.  You may want to see what you can find.

 

From there show up an argue the truth, should be hard to argue the truth....

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Good idea try the truth, I just received proof that we had an agreement (I think there office sent it out in error) but I'll take it. It shows my most recent service rendered invoice with there approval and showing that my services were applied towards my balance.

 

So I have proof and details of our agreement. Question is what do I do with this info. If I answer with we had an agreement but the Plaintiff has changed his mind.

 

By having this proof showing that the Plaintiff did not show because of our agreement rather than them claiming they missed the date.

 

If I'm admitting to the debt. Does this open the door for there Motion to remove dismissal and get it refiled. Or by me showing this agreement info in my answer stop there motion if not then at the Motion hearing is my info enough to keep the courts 1st. decision of Judgment of Dismissal.

 

I guess what I'm trying to better understand is by answering with there is/was an agreement between us but now the Plaintiff has changed his mind and wants to refile.

Should I be attacking the reason they did not show up and that in of it's self should be enough to keep the dismissal. ???

Or argue our Pre Court agreement, and show that they now do want that agreement (Our agreement was not court ordered) because we never went to court)

 

I don't know if the Mag. will just order me to pay them anyway through a court order while I'm at the Motion hearing. Or is there any reason to think that because they chose not to show the 1st. time that they don't get another chance. Common sense would say NO but this is MA, Small Claims so who knows.                    

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Sorry I forgot to mention The 1st. ruling was "Judgment of Dismissal"  No where/ anywhere does it state with or without prejudice.

It does say in its brief small printed rules that a Plaintiff can refile if they have good reason too.

 

I have proof of before/during/after of the bartering services (Verbal agreement) With invoice's proving what I owed them and there monthly statement where they applied my services towards my balance. Days after they applied it they then refiled with the court. a week after that I got a phone call from them and they left a message (I saved it on my phone)  We will no longer be needing your services. No explanation of why then changed there mind.

 

I have proof that I started to barter services then they changed there mind.

 

I don't think it matters at this point so I'll tell everyone my services are for Snowplowing  there store parking lot. Again something that I've done for a few years.

The Motion to remove dismissal hearing is for 3/15   Now that they don't want me to snowplow anymore when I show up in court 3/15 Snowplowing season will be over and I only got a chance to barter $130.00 Now I owe $550 ish.

 

We made a deal they reneged and stopped it, By them doing so is this the end of it  ????????????????????         

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I keep forgetting I can't edit posts,

 

I would like nothing more than to tell the Mag. Hey we had an agreement they broke it now deal with it Good-By.

 wish full thinking on my part. 

This is just a Motion hearing so I if I loose then the court would have to set a new date for the actual case ???

 

If there motion is granted and we go to court the fact that we had an agreement in place and after a payment was received by them they then refiled the case and stopped me from completing our agreement.

How would someone argue it's over and done and they had there chance now Dismiss !!!

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  • 2 weeks later...

How much info/proof should I revile.

 

1)    In my answer 

2)    At the Motion Hearing

 

When I show the court that the reason for us not showing up was based on an agreement. And not that they forgot the date.

Will the fact that they did not allow me to complete our agreement be enough to squash there Motion to refile.

 

I need guidance on arguing against there Motion with out me supplying them with to much info that it allows the Mag. to reopen the case. 

 

Ma, Sm. claim Rule 8    Refiling must show good cause.  Now showing they forgot the date may or may not be (good cause)

I guess depending on what mood the Mag. is in that day.

 

But proving the reason given by them is a lie/not true based on an agreement should not allow them to refile.

Will the proof I use to show the court the real reason we did not attend, Also show enough for the Mag. to reopen the case. 

 

I'm going into this with the mind set that (I'm only here to stop there Motion and not discuss the case)

Because the case was Dismissed.    

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  • 1 month later...

Funny that you should post today because I went to the hearing last week. I have been checking the courts website everyday and they just posted the results today. 

 

I went to the motion hearing and the Mag. let him reopen the case even though I showed the time line of the agreement the invoices and there monthly account statement which proved they agreed to the plan because it showed they gave me credit for my snowplow services.

 

Based on the dates and my proof that should have been it but No. The plaintiff said I know nothing about any snowplowing agreements (after I showed the Mag. that we not only had an agreement in place but for the past 3 years this is how it was when my balance got a little high towards the winter we would swap my balance for snowplowing services The Mag. then asked the plaintiff well who did your plowing (HE said I don't know) think about that for a second !!!!!!!!!!!!!!!!!!!!!!!!! 

 

Mag. ruled in there favor. It gets better he also let them not count my plow services in the balance so the Mag. handed them $130.00 worth of my snowplowing services for free.

 

 

That is why I can not say it enough. If you have any option available to you that you can avoid dealing with Sm. Claims Mag/Clerks do it.     

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  • 2 weeks later...

Funny that you should post today because I went to the hearing last week. I have been checking the courts website everyday and they just posted the results today. 

 

I went to the motion hearing and the Mag. let him reopen the case even though I showed the time line of the agreement the invoices and there monthly account statement which proved they agreed to the plan because it showed they gave me credit for my snowplow services.

 

Based on the dates and my proof that should have been it but No. The plaintiff said I know nothing about any snowplowing agreements (after I showed the Mag. that we not only had an agreement in place but for the past 3 years this is how it was when my balance got a little high towards the winter we would swap my balance for snowplowing services The Mag. then asked the plaintiff well who did your plowing (HE said I don't know) think about that for a second !!!!!!!!!!!!!!!!!!!!!!!!! 

 

Mag. ruled in there favor. It gets better he also let them not count my plow services in the balance so the Mag. handed them $130.00 worth of my snowplowing services for free.

 

This is why, even if swapping services.....................get the terms in writing and Notarized.

 

 

That is why I can not say it enough. If you have any option available to you that you can avoid dealing with Sm. Claims Mag/Clerks do it.     

File a graduated Sworn Affidavit of Denial..............you no longer owe and even if you did the amount is totally incorrect and that you have proof.

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It's over, Ma, gives you 10 days to appeal, Starting from the date of judgment. Even if I wanted to appeal The date of the decision was on a Mon. I got it in the mail on Fri at 5:00 PM. 

That left me with 3 days (And my only options would have been jury trial or MTR)

 

MTR what a JOKE Asking the same guy, the same question, and expecting a different answer. 

 

From what I could decipher from the Ma, Sm. Claims Courts Website/Manifesto is that I would not be able to use the panel of 3 judges or appellee court's there for housing and ?????????????     I would be back in the kangaroos pouch     

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It's over, Ma, gives you 10 days to appeal, Starting from the date of judgment. Even if I wanted to appeal The date of the decision was on a Mon. I got it in the mail on Fri at 5:00 PM. 

That left me with 3 days (And my only options would have been jury trial or MTR)

 

MTR what a JOKE Asking the same guy, the same question, and expecting a different answer. Definition of Insanity

 

From what I could decipher from the Ma, Sm. Claims Courts Website/Manifesto is that I would not be able to use the panel of 3 judges or appellee court's there for housing and ?????????????     I would be back in the kangaroos pouch     

Thats why now I believe we should always EXPECT to take it all the way to Appeals...............Making more sure at the first steps to create issues and objecting.....preserving issues for appeals.

 

I agee............if ruled against by a judge once, don't ever give him a chance to do it again. Either demand his reclusal, go for a change of venue, or appeal immediately (the one I'd go for). We get 30 days here......any retrials or request must be done in first 10 days, but if appeal is filed in that period it is "premature" and you have to file again in effect.

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