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Dear
Judge Baker and Members of the Small Claims Court Task Force:

I
wanted to expand a bit upon the comments I made at the meeting.
FORUM
SHOPPING:
Make no mistake, attorneys, in particular collection attorneys, are forum
shopping in our small claims court. There is an enormous incentive for
them to keep big filers happy lest the township lose the income that comes to
through the filing fees. I remember when I ran in a vacancy election for
Pike Twp Small Claims Court in the early 1990s, the Pike Township Trustee told
me I should not rule against the big filers more than rarely lest they go
somewhere else.
Decatur Township has often been complained of as being friendly territory for
collection attorneys. It doesn't help that they do not have a bus line down there. That
is the township I talked about the case my law firm had a defendant 10 years
earlier had a medical bill of about $350 that went to collections. The medical
provider received a judgment and at pro supp, the court ordered that the man’s
be garnished to pay the $350 bill. A decade later he was hauled into
court on a pro supp proceeding on the same judgment. Even though the debtor was represented by counsel and the collection attorney had no evidence that the garnishment didn’t
fully satisfy the judgment, the court ruled against the client. He paid
it again.
I
frankly did not understand their objections regarding venue and the Fair Debt
Collection Act. A collection attorney who spoke near the end clarified that
this is apparently no longer an issue as it possibly was at one time in Cook
County. Given modern technology, I do not buy that it is that difficult to tell
which township a defendant lives in. Regardless, you could just have a
rule that the case gets automatically transferred if its filed in the wrong
township, without penalty to the plaintiff.
The
thrust of the testimony seemed to be that the small claims court defendant can
ask for a change of venue to their home township. My reading of Rule 12
is that a small claims court venue change is not mandatory…it’s discretionary with the court. Some of the
collection attorneys indicate that in all their years people rarely ask for a
change of venue. That is because they do not know they can make that
request. The fact is these are very unsophisticated litigants.
I
can guess what was going on. That collection attorney had gone through
the court files looking for any cases where judgments were entered, and there
was no satisfaction of judgment filed, and made a deal with the creditor that
she would pursue it in return for a portion of what was collected.
Ironically that same day I was in a Marion County Small Claims Court
and the judge there mentioned that a collection attorney had spent the day
going through the files, undoubtedly looking for judgments not shown as satisfied. Because a judgment can
remain alive for at least ten years, it iseasy to pursue
unsophisticated litigants who leave court thinking everything is resolved and
will be taken care of, and then find out years later the final paperwork was never filed showing the judgment was satisfied.
SMALL
CLAIMS COURT JUDGMENT DOCKET AND NEED FOR UNIFIED COMPUTER SYSTEM: One of
the collection attorneys mentioned that the Marion County Clerk has a small
claims court judgment docket. I reviewed the rule and that it is indeed
the case that the court is to send their judgments in to the Marion County
Clerk. I have to wonder
though if it is done on a regular basis – do they physically mail the judgments
to the Clerk? Nonetheless, that is just the judgments. All filings
in small claims court need to be viewable in the Marion County Clerk’s
system. Right now, if you want to know what’s filed on a case, you have
to go out to the individual township or call.
Thank
you so much for your interest in working to make improvements to the Marion
County Small Claims Court. It is much appreciated.
11 comments:
Great blog template, by the way!!!
Thanks, DI. I think it is easier to read.
Paul, I commend you on what you wrote drawing from your own experiences in Marion County Small Claims Courts. Many of those courts have been absolutely disgraceful in their operations and practices. The average Joe or Jane has just been run over by debt collectors not knowing what their rights really are and/or how to assert them. I was in one Township Small Claims Court yesterday and asked if they provided a Litigants' Manual to assist non-lawyer litigants in the process. I was told "No".
Try to get a panel of three judges appointed after a Small Claims Court judge steps down from a case. That is a struggle and a half. In fact it may be impossible.
Irish,
Thanks.
I've never tried to get a change of judge in Small Claims Court, but I imagine that would be a problem. I'm not sure it's worthwhile from my client's perspective, because they can always pay $150 and get the judgment wiped away and the plaintiff has to refile in Superior Court. Sometimes a small claims court trial is a good opportunity to do a practice run through the evidence.
Paul,
I realize the economics of most small claims cases do not justify a costly battle. However, there are principles involved in some which are too valuable to simply toss aside. Laying down one's arms in the face of judicial error can only serve to bolster a broken system.
If a judge in a small claims cases who recuses himself fails or refuses to appoint a 3 judge panel as required by Trial Rule 79.1(G, then it could be worth a shot taking a Mandate action directly to the Indiana Supreme Court. The Supreme Court needs to see real cases on how the small claims courts are working or, rather, not working.
When I read what one Marion County Township Small Claims Court judge said to a reporter I almost flipped. He was quoted as saying something like "I am sick and tired of hearing the feeble protests of debtors." How can the Indiana Supreme Court right that kind of judicial mentality? Well, I am sick and tired of being in Small Claims Court when I shouldn't even be there. It's been a eye opener indeed.
How do you find out if a car is broken? You test drive it. How does one find out if the Marion County Small Claims Courts are broken? You test it.
When you've got IRS debt, the IRS typically picks a Payment Agreement as the most effective IRS program for people. It's the simplest program to become accepted for and also the IRS replies quickly. But if your tax debt has over $10,000, the IRS might seek out well over what is within your budget to spend month-to-month. When this occurs, you might like to engage a tax guru that can assist with negotiations on prices. Find the info about a Payment Arrangement: http://tax-defense-network-irs-programs.com/tax-defense-network-partial-payment-installment-agreement/
Debt Collectors back to their old bag of tricks. This time the attorney lied and took advantage of a woman who's child was being seen at Riley Hospital for Children.
Copy of a womans experience with Decatur Small Claims Court and Derek F. Johnson of Jacob, Hammerle, and Johnson Law Office.
Woman's Story:
“12/13/12 initial court hearing for unpaid medical bill $397.00. Did not know about the bill I had signed letter from a different Attorney (not Derek Johnson) that the hospital inadvertently did not inform him or client about the bill at that time. The hospital also admitted to the mistake. I met Johnson in a room outside the court room. I informed Johnson that my son was being seen at Riley Hospital and was scheduled to see an Oncologist and I just didn't have any money. Told him I could pay the bill that was all when I got my tax check in Feb. Johnson gave me a paper and said just sign this. I asked the Attorney if he would dismiss the Judgment if I signed the paper. He asked me if I could pay by 2/9/13 $870. I said I would try as this is about the time I would get my tax check in Feb. Again, I asked him if he would dismiss the Judgment he said, "Yeah whatever, just sign the paper." I signed the paper but asked the Attorney to put it in writing that he would dismiss the judgment if I paid by 2/9/13. He refused. I said, "It's my right to get any deal in writing and get a copy of it." He refused again. I said, "I want to see the Judge because you're not doing something honest here." He stormed out and went into the court room. I told the Judge about the deal he tried to make but the Judge wouldn't listen. I told the Judge about my son and that I didn't have the money except to pay the bill. I begged them both. Derek Johnson LIED to the Judge and said Johnson said he didn't offer any deal or say he would dismiss anything. Then Derek Johnson said something to the Judge like "evidentiary/evidence hearing." I said to the Judge and Derek Johnson I was trying to be honest that i owed the bill and Mr. Johnson was not. I said in open court I would pay once I got my tax ck Feb. Judge agreed. On 1/9/13, Derek Johnson filed for non-payment. Only 11 business days after the Judge gave me the Judgment and not enough time to get a tax check. He CHARGED me more fees. Total $999.”
It's not just Small Claims courts in Marion County. Some of these practices highlighted here happen all over Indiana. I heard about a collections attorney who fell foul of a judge in a relatively small county. The judge did not approve of the attorney's hourly rate, and limited him (and all other attorneys filing at that court) to a maximum hourly fee). The attorney simply made up the difference, adjusting the paperwork by adding hours "worked" on the case.
I do see another side to this however. There are indeed many, many debtors who refuse to pay, or pay exceedingly little towards judgments. It's easy to understand a judge's exasperation at people who continually hold the court in contempt by not paying judgments as ordered. There has to be responsibility on the debtor's side to know what they owe and who they owe, ALWAYS come to court, and use the opportunity to ask questions about the debt and the judgment and well, fight their corner. Many of these debtors simply ignore the problem until a bench warrant is issued, and by then it's way too late to start talking down the amount you owe.
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