I'm going to court this week

[dgood1]

Re: I\'m going to court this week

Gary,

Some words of wisdom that I got from an attorney. "You never know what will happen in court."

The other gem was in a law magazine that I saw back in the 70's. There was a cartoon showing an attorney talking with a client. The caption read. "Just how much justice can you afford" That unfortunately seems to be the case more often then not.

Good luck and keep your head down so they can't hit you.

 

[Gary_in_Indiana]

The latest news

I spoke with my attorney today who had done his research and here's the scoop.

I can do nothing and wait for the TRO. If it comes the other side should be required to post a bond. My attorney can then go after the bond for his fees when we prove ownership. I looked at that as good news and somehow poetic justice.

Here's the downside to that. IF the wording on the TRO enjoins me from entering HIS property and buildings at {address} then I could be OK. IF it states "pole barn" specifically I could have a problem as mine is the only pole barn even near that address. Then, even though I clearly own it, going there might still be considered a violation of the court order. Further, emboldened by such an order, the other party's agents might take it upon themselves to break the locks off the pole building and do whatever to or with the contents. Not a pretty scenario there.

So, not knowing what the wording might be and given the uncertainties inherent in anything like this, I'm going to file a response to their motion Thursday morning showing the deed and survey. Unfortunately, doing this precludes any chance of collecting attorney's fees for having been forced to do so. Once again, I'm 100% right and still get to pay the freight. /w3tcompact/icons/hmm.gif

 

[MDNY]

Re: The latest news

Gary,

You could go after them in small claims court for your legal fees. But I would get this cleared up without too much delay as they could just rob you blind since you can't go on the property once the TRO is issued to you.

Good Luck.

 

[Gary_in_Indiana]

Re: The latest news

That was the deciding factor for me. As I said, the answer to their motion will be filed Thursday morning, which should fall well within an appropriate time frame for my reply.

As to my additional expenses, there is no statutory basis for seeking damages (in any court) for costs of defending against even a spurrious motion.

I'm not going to worry about it at this point. It's probably another few hundred dollars on top of what is already thousands spent. If we prevail and my foreclosure action is upheld OR if we reach a reasonable settlement (meaning me paying them to go away) and I get the property it will all have been worth it. It's that on which I have to keep my focus here.

 

[dmccarty]

Re: The latest news

Gary,

The whole thing stinketh......

Now we don't know what a court will do but HOW can
some one get a TRO to stop you from using your property
without proving ownership first? Given the scenerio you
threw out, if the other side did manage to get a TRO on
the property how does that give them OWNERSHIP of
the property and what is contained in the barn? Seems like
if they managed a TRO against you and then damaged or
stole from the property that would then fall under a criminal
statute....

Has the lawyer said anything in this regard?

If there is no way to sue them for the cost of defending
yourself agains a spurrious lawsuit then our system is even
more screwed up than I already knew it to be......

Good Luck!
Dan McCarty

 

[Gary_in_Indiana]

Re: The latest news

Dan,

Well, I don't think the court is going to do the research on this so it's up to me to provide them with the information on ownership. If I didn't respond they could possibly get the order and, as I said in an earlier post, if it specified the pole barn I might be in technical violation if I went there.

I don't think there would be any claim of ownership of property in the barn, etc., but, if they actually believe they own this then they might feel emboldened by the order and might well want in to "their" barn to see what I've done there.

At that point I'd be more concerned with the reality of what COULD happen and the difficulty of proving they did it, quantifying damages, obtaining a judgement in that amount and then collecting that judgment.

As to trying to escalate this into something potentially criminal on their part, I'm just not interested for a number of reasons including the difficulties I mentioned above. Too much downside risk for me. I was out there today and got to looking around and would estimate somewhere in the neighborhood of $30,000-$40,000 replacement cost for everything I have in there.

As to suing for costs of defending a spurrious lawsuit, that option is not available because this is not a suit but a motion appurtenant to a valid suit I filed. The only way to sue for costs against it would be to allow the TRO to be ordered first. As I said, I don't want that to happen so I get to pay the tab.

 

[dmccarty]

Re: The latest news

Gary,

I now understand the spurious lawsuit issues.

I did not mean to suggest you should escalate any of this
into some sort of criminal action. My point was that
IF they got the TRO it seems to be a big step from keeping
you from the barn to assuming that they own everything in
the barn. Obviously you don't want them to damage or steal
your property but if they did I don't see how the TRO gives
them the "right" to do so. And if they did damage or steal
said property that would be a criminal offense.

Of course proving it could be difficult but maybe not either.

Let us know what happens.....
Dan

 

[Gary_in_Indiana]

Re: The latest news

Dan,

You're right that a TRO wouldn't give anyone a "right" to enter my real property or remove any of my personal property therefrom. My concern was more along the lines of what they might perceive to be their rights to at least enter my land and building. Right now it would seem they believe this land to be theirs and not mine anyhow, so, even with the absolute purest of intentions, they could well trespass and not even be aware they are doing so.

If the situation were reversed I could imagine me going on to "my" land and breaking a lock off "my" building to see what was going on inside and then resecuring the building with my own locks.

The TRO issue should be resolved tomorrow and I have to believe it will be resolved without a TRO being issued or any hearing being set.

 

[chim]

Re: The latest news

Sure hope they didn't lock ya up, Gary. Kinda expected a report by now. Could be you're off celebrating the victory?........chim

 

[Gary_in_Indiana]

Re: The latest news

Well, here's the latest. I signed a response to their motion for the restraining order this morning. I also provided a copy of my duly executed deed (recorded in January of 2000) and the survey showing property lines, corners and the location of MY pole building clearly within those boundaries. I would imagine it was recorded and sent to the judge before noon. In all likelihood, the final result will be a denial of the motion for the restraining order.

I'm being deposed Tuesday morning on the larger suit. After that I'll probably make some decisions regarding requesting a restraining order of my own and whether or not I want to issue interrogatories to the other party or depose them.