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Update with case cites: atty refuses "exempt status" of debtor; contempt cite


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Hi, I'm pretty new here but have been reading through info and threads as well as researching elsewhere. Attorney hired to represent me in divorce issued a proceedings supplemental against me in July 2015. I had to do a LOT of research to determine that I have no non-exempt assets or income. I attended the "hearing" as scheduled and informed the attorney that I was not and had not been employed (since 2013), that my only income is SSDI; I have a car worth between $1,600 and $3,000 and some personal belongings.

The attorney refused to accept my "exempt" status and tried to browbeat me into a "payment agreement". I refused and was told I can come back to court and "tell the judge your sob story". I was further informed that I would not be "let go" without a (minimum) $50/month payment, ordered by the judge. I refused to sign the continuation form "as is" as it stated it was by "mutual agreement". I added some of what the attorney had threatened me with, but was so upset I didn't think to write down that I am "exempt".

I showed up for the second time, where I learned I WAS NOT scheduled to be seen IN the court; the outcome being that I now needed to provide three months worth of bank statements and information on my car title. Before leaving, I checked with the clerk as to whether there is a form on which to "claim exemptions"; I recently learned this is considered an "affirmative defense".

Today, I received a "pro supp citation/rule to show cause" why "he (sic) should not be attached and punished for contempt of this Court".

I am planning to file a "motion to dismiss"; as I am totally exempt at the moment, there appears to be no (valid) claim upon which relief may be granted to plaintiff and that I have complied with TR69e governing proceedings supplemental. I will also raise the affirmative defense of exemption within the filing.

While doing all the research about the proceedings supplemental, I started wondering whether the attorney "properly" received this (default) judgment against me. Originally, the attorney was supposed to be paid from proceeds when real estate (marital estate and order for payment contained in decree) was sold. Attorney withdrew when I insisted the decree needed clarification or modification as it was very vague and silent; I had no control over the sales process, etc. Ex let it go through foreclosure, after which it was purchased by his brother at sheriff sale. I was forced to try to deal with numerous legal situations without representation or success; it seems the attorney's refusal to address gaping holes in the decree is more the cause for not getting paid than anything I had control over, especially by that time.  In fact, I'm wondering whether I might have a counter-claim (I lost an equalization payment due me as well as most of my personal property and two pet cats) but I think I need to do more research before challenging anything.

Is it a good idea to cite the cases/code/rules used for foundation within my filing? Particularly where the cases are from the appellate/Supreme courts? My experience to date is that pro se parties are often "silenced" in court for procedural faux pas; despite this taking place under Small Claims (informal) rules, I was not allowed to speak when I was evicted due to the fraud of ex/his brother to circumvent the divorce orders and I can see the same might happen again; I don't want to go to jail having done nothing wrong. Any guidance is appreciated.

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  • 1 year later...

Hi; sorry. The "basis" was my not showing up for court when I had an official court document stating I was to be there at 11:00 am; but the attorney told me (and the paper I had from the second "hearing" showed) 1:00pm. I called the court, then called the attorney's office. I wasn't willing to make a 50 mile trip (one-way) since there was no way I could make it by the time the official court record had the matter docketed for. I also sent in ALL the requested paperwork (to the attorney's office) via e-mail the same day.

 

As it turns out, Indiana is a HORRIBLE state, in terms of making legal INFORMATION accessible to those who  live here (despite a constitutional "guarantee" of open court "without fee", etc). I had to do so much research because I WENT to court, as scheduled, and again (being told - or threatened -  that I could "tell (my) sob story to the judge". When I went the second time, I was not scheduled to appear before the judge. The proceedings supplemental are held in the courthouse, but there is no audio/video recording of what occurs and no witnesses, other than the parties.

 

I ended up having to go in about four more times; another time, I was again told "next time" the judge "could decide" if I was exempt (!!). When I showed up, I was again NOT scheduled to appear in front of the judge. The next time after that, the attorney was a "no-show" (granted a continuance a few days before; I received no notice). I missed the next "hearing" and had finally worked out a three page motion to dismiss the matter, citing the pertinent cases and portion, but had no way to file it timely. A bench warrant was issued at that point ... this matter, that should have been marked "held and concluded" on the very first meeting, was dragged out for over a year ... and the issuance of the warrant came with a "bond" that was the amount of the judgment (which was to be paid upon LEGITIMATE sale of the marital property, which I had no control over) levied against me when the marital property was in foreclosure. Had I BEEN jailed, there was no way I could have paid to get out. I also would have been in real danger of having my Social Security disability payments cut off, etc)

One of the cases I cited is given a good explanation at this link : http://commercialforeclosureblog.typepad.com/indiana_commercial_forecl/2012/02/contempt-powers-unavailable-to-enforce-payment-of-a-civil-judgment-in-indiana.html . Although it could be argued I was being cited for not showing up, I had noted on very paper I was forced to sign at the end of each meeting that the continuances were NOT by "mutual agreement of parties" (as attorney was stating) and that I was exempt and NOT willing to make a payment arrangement. The Deidre Carter v Grace Whitney Properties states also that a debtor (exempt) cannot be forced to attend "ongoing proceedings supplemental hearings and be reexamined continuously as to whether the debtor has acquired any new assets or income” ... any future proceedings supplemental against the defendant “must be supported by new facts justifying a new order or examination.” 

I did happen to come across some information about the actual case; when Deidre Carter (exempt debtor) showed up, the court ordered her to pay or be jailed (an unlawful order). Fortunately, a woman in the room paid $100 on Carter's behalf.

In this case, I KNOW the attorney was misusing law and court processes to harass and even frighten me. Having "represented" me, the attorney KNEW I have PTSD and of course, the tactics used did not help matters. I'm posting the cases that helped me understand some of my rights as an exempt debtor; the cases might be useful to someone else. In Indiana, I have learned that cases from other states, even "unpublished", can be cited in one's own case. So these "published" cases may benefit others, depending what the rules are there.

 

From reading them and some supplemental reading, I was aware I was being "screwed with" when I was in the situation but that knowledge didn't give me the tools to "address" it (make it stop). I was able to finally find pro bono assistance; the bench warrant was "quashed" and I now know I can file a written answer if the matter comes up again, BEFORE making any appearance. I ran across my post when I visited here for the first time in a long while and apologize for not answering promptly; thought it might be helpful to update and post the cases as my reading and speaking with others leads me to understand that creditors often enough use improper methods to try to force or coerce payment; in this matter, I feel no guilt, because the attorney refused to get the decree clarified or modified and withdrew when I insisted. In fact, I wanted to be OUT of there back in early 2011 ... when I still had two jobs, an operable car, some money in the bank and excellent credit. Instead, I was thrown out Labor Day weekend 2014, when my ex-husband defeated the divorce decree by letting the house intentionally go through foreclosure ... to be bought by his brother at the subsequent sheriff sale.

(all cases can be found at leagle.com)

Carter v Grace Whitney Properties

Branham v Varble

Branham v Varble & Chastain

Kirk v Monroe Tire

 
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