A former attorney friend of mine told me that I can re-file a small claims court case that I lost... is this true? I filed the case, and then due to illness, I did not show up at the hearing, neither did the defendent. The judge ruled against me. I then filed a motion to vacate the judge's decision, and again I was ruled against. My friend, a former attorney, told me to simply re-file the case, the same case in the same small claims court. Can I do this?
2007-04-29 13:35:58 · 6 answers · asked by Karakul 1 in Politics & Government ➔ Law & Ethics
If you had shown up you would have won by default. Yes, it was dismissed and can be refiled. Just file another claim with no mention of the prior case, as if it is your first filing. Didn't your friend tell you that?
2007-04-29 13:41:22 · answer #1 · answered by lcmcpa 7 · 2⤊ 1⤋
Since the motion to vacate was denied the case must have been dismissed with prejudice and can't be refiled. Ask your friend to define res judicata and explain when it no longer applied in California courts. If the defendant shows up and shows that he already won this case, you will be charged court costs and possibly a penalty for a frivolous suit.
2007-04-29 14:15:16 · answer #2 · answered by Scotty 4 · 1⤊ 0⤋
It depends on the ruling made. If the case was actually adjudicated against your claim, only an appeal would be available and you have likely missed the time limits for filing it. If the case was simply dismissed by the court, you can re-file it unless it was dismissed "with prejudice".
2007-04-29 13:44:47 · answer #3 · answered by wcslaw1 2 · 1⤊ 0⤋
I have a question first...why is he a former attorney....as attorneys we are attorneys until we die...even if we are not actively practicing...if he is no longer lisenced was he disbarred? If so don't take advice from his for everal reasons...if not then be careful.
And technically you can refile...but since your motion was also dismissed...it is likely your case was dismissed with prejudice which means you cannot refile...the moreyou refile...the more you open yourself to punishment from the court.
2007-04-29 16:38:46 · answer #4 · answered by Dr. Luv 5 · 0⤊ 0⤋
When you go to SC, you get a judgment against person/corporation who owes you money. That piece of paper proves the debt. If the debtor does not make payment, then you have to go another route through the Court (collections, enforcement) by registering the judgment as a writ against their property: you have lots of choices, depending on if the debtor's assets: 1. real property - against title to their physical land property 2. personal property - register at PP registry 3. garnishment against their bank accounts/money 4. bailiff to remove property for sale 5. depending on your debt (I doubt this because you noted small claims) you might be able to petition them into bankruptcy, but you want to be a priority/secured creditor if you choose this route.
2016-05-17 05:12:47 · answer #5 · answered by ? 3 · 0⤊ 0⤋
You are only allowed one bite of the apple in municipal court, however you may appeal the judge's decision in a higher court.
2007-04-29 13:44:11 · answer #6 · answered by Anonymous · 0⤊ 1⤋