Judges differ in small claims court action

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The Indiana Court of Appeals affirmed a trial court's decision that the plaintiff had standing to file a small claims notice against his bankruptcy attorney, but the judges disagreed on whether the court erred in denying the attorney's motion for a change of judge.

In Alfred McClure v. Jackie Cooper, No. 86A03-0801-CV-38, attorney Alfred McClure filed a verified motion to dismiss the claim for improper venue and a motion for change of judge. Jackie Cooper brought a small claims suit against McClure for a full refund of money he paid to McClure to represent him in a bankruptcy case.

Citing Hammes v. Brumley, 659 N.E.2d 1021, 1025-30 (Ind. 1995), the appellate court unanimously ruled Cooper had standing to bring his claim, even though he failed to disclose it in his notice of bankruptcy filing because a bankruptcy may be reopened so the debtor may remedy an error, wrote Judge L. Mark Bailey. The Court of Appeals remanded the case with instructions to notify the bankruptcy court and trustee of the trial court's judgment of this opinion.

The appellate court also unanimously agreed the trial court was correct in denying the change of venue motion by McClure. McClure had performed services for Cooper in Warren County, as required under their signed contract for legal services, which makes Warren County a proper venue for Cooper's claim, wrote the judge.

However, the judges did not agree on the dismissal by the trial court of McClure's motion for change of judge. Judges Bailey and Ezra Friedlander agreed with the trial court's decision, finding Trial Rule 76(C)(5) narrows the window of opportunity to seek a change of judge after a trial date has been set. Pursuant to this rule, a party has three days after receiving a notice from the court that a trial date had been set to file a motion for change of judge.

In essence, in small claims cases, a claim also serves to notify the litigants of the trial setting in small claims proceedings in addition to informing the parties of the date, time, court, and relevant documents to bring. Since McClure filed his motion after more than three days had passed after receiving the notice of the claim, the trial court was correct in denying his motion, wrote Judge Bailey.

Judge James Kirsch dissented, finding the trial rule doesn't apply to the instant case. The court didn't hold a hearing, it simply set the matter for trial. Judge Kirsch finds that T.R. 76(C)(5) requires that a party appear at or have a notice of a hearing, that the court at that hearing sets a matter for trial, and the trial date is promptly entered into the Chronological Case System. Because the trial setting wasn't made in course of the conduct of the hearing, he doesn't believe the rule applies.


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues