Personal Bankruptcy Missed trial date and poundering request to set aside default judgement

Status
Not open for further replies.

nyjohnson

New Member
I filed for chapter 7 Bankruptcy and I had a creditor object and file for a adversary proceeding. The credititor loaned me money for a modular home which had a promissory note and a ucc security agreement. However he did not file the UCC security agreement any where, and I had not paid him any money. I missed the trial date because my lame attorney told me the case was for 10 days after the court date.

The judgement came down hard and the opposing attorney added claims and requests that were not part of the orginal claim.

My question is two fold:
Should I risk a motion for relief from default judgement and reopen the case and set a new trial? opening up the case so the plaintiff can add their claims?

Or go to the damages hearing to agrue the added complaints were not on the orginal complaint. will the plaintiff's attorney be able to add the claims and requests that were not included and be awarded those damages as well.

What type of arguments can be made for not including claims and requests on the original complaint?
 
No Irrelevant Tangents!

First off, there is a six-month window within which to file a Motion To Set Aside Judgment, and the recognized reasons are mistake, inadvertence, oversight, and excusable neglect. But the one ground the Code does not recognize is attorney mistake, so be careful on that point. Having said that, attorney mistake is the chief reason a litigant defaults and the courts regularly consider this reason "in the interest of justice."

And you need not worry about opening yourself up to "new and added claims" from the plaintiff if you move to have the judgment set aside because the Code forbids a litigant to "Split A Claim." This means the plaintiff has to assert any and all claims he has against the Defendant in the original complaint and in that very action and cannot pick and choose or add and subtract at will. By that token, the relief awarded to a prevailing party is limited to the relief prayed for in the original complaint.

Now, it could be that the Plaintiff had filed an Amended Complaint which you are not aware of which might in small measures explain the added or different claims. Because there are prayers for relief that are not known at the time of the filing of the complaint but which will be "quantified" or "determined at trial.

As to your last question: That is neither for you to argue, nor should it be argued within the context of a Motion to Set Aside Judgment at all and you have to be very careful not to argue outside the parameters of this motion which should be the excusable act causing you to miss the trial and why relief should be granted. That is it. No More and no less. You know; horses for courses and so on and so forth.

Last but not least, here is a little road map on how to go about such a motion. This is a Noticed motion and cannot be heard ex parte, so first you need to call the calendar clerk of the department (courtroom and judge) the complaint was assigned to and schedule a "Hearing Date for A Motion To Set Aside Judgment." That time and date is then inserted into two sets of moving papers; the first is "Notice of Defendant's Motion To Set Aside Judgment" and the second is "Defendant's Motion To Set Aside Judgment" which would contain your argument and points and authorities as well as "Defendant's Affidavit in Support of Motion To …"

You then file and serve the opposition and make sure you receive what would be "Plaintiff's Opposition To Defendant's Motion To Set Aside Judgment" at least 5 days before the hearing date

All the best and keep your wits about you.

fredrikklaw
 
Status
Not open for further replies.
Back
Top