Defendant Is Going To LIE About Not Getting The Plaintiff Claim -- Help Please - Court Forum

quantass · [**Buy Web Names**] #1 (**permalink**) 12-12-2007

The Facts to my case:
A big thanks to anyone who provide any helpful tips i can use when i go to court on Monday.

Sept 3 - I hand-delivered the "Plaintiff Claim" to the defendant at his home (which happens to be his business place of residence as well) face-to-face.
.
Sept 25 - Went to the court house and performed these actions:
.
- Discovered the defendant did not file a defense.
- Submitted a sworn "Affidavit of Service" saying i hand-delivered the Plaintiff Claim to the defendant on Sept 3rd.
- The defendant was Noted in Default (meaning he did not file a defense in the 20 calendary day period after being served the "Plaintiff Claim")
- Put in a request for a "Notice in Writing for an Assessment of Damages". This means that a judge will review the case without the presense of the plaintiff or the defendant and decide the damages amount based on the evidence (if he agrees) that i should be awarded.
  .
Oct 2 - the assesment comes back in my favor (known as a default judgment) for the amount of $3,290 (before court fees).
.
Oct 12 - Went to the court office and requested a motion for an "Examination Hearing" which is set for Nov 16th. This means that a court date is set where me (the Plaintiff) and the defendant MUST appear in court to discuss the defendants finances so i can find out how and when he can pay me.
.
Oct 12 - I hand deliver a copy of the motion for the "Examination Hearing" and a "Financial Information Form" at the defendant's home. However, the defendant was not home at the time so i gave it to his wife (she mentioned he was going to be back in a week). I also mailed a copy of this hearing (which is something i had to do since i couldnt deliver it to him in person).
.
Nov 6 - I receive a letter in the mail from a paralegal for the defendant saying he wants to settle this for the amount of $1200 before having to go to court. I refuse and say that i've lost more from the damage to my property due to the defendant. This is also the first time i hear anything from the defendant after seeing him in person when i dropped off the plaintiff claim back on Sept 3rd.
.
Nov 16 - Day of the "Examination Hearing" at the court house. What happened:
.
- The paralegal only shows up (the defendant isnt there).
- I let the judge know that the defendant did not give me the "Financial Information Form" prior to the starting of the hearing. Fact: Before the hearing begins it is important that the defendant return the Financial Information form back to the Plaintiff.
- The paralegal for the defense requests an adjournment because he hasnt had time to review case since hired only recently.
- Judge grants Adjournment and orders defense to give Financial Information Form by Nov 20th.
  .
Nov 20 - Paralegal for defendant drops off Financial Information form at my house.
.
Nov 27 - Defendant files a "Motion to Set aside Default Judgment". This means he is requesting a hearing in front of a judge so he can reques that the $3290 default judgment can be dropped and he can have a chance to file a defense. However, here are the rules of the Small claims about setting asidea default judgment:

Small Claims Rule 11.06: The court may set aside the noting in default or default judgment against a party if:

(a) the party has a meritorious defence; and
(b) a reasonable explanation for the default; and
(c) the motion is made as soon as is reasonably possible in all the circumstances. O. Reg. 78/06, s. 24.
Dec 5 - Paralegal for defendant drops off the "Notice of Motion" and accompanying "Affidavit" (this is for the hearing for setting aside the default judgment) and on it here are the defendants statements of fact:
1. I was "out of town" when the original Plaintiff's Claim was delivered to my home, and only learned of any "Judgment" when i reviewed the "Examination" Documents.
2. I have a "Defence" to all, or part of the Plaintiff's Claim.
Dec 17 - Court date for the defendant to see if he can set aside the default judgment.

...and that's it....If you actually read through all these facts (and i thank you for those who did) you will see that the defendant is LYING about not receiving the Plaintiff Claim...he says above that he was not in town....and i fear that his defense to the judge on Dec 17th will be that he was never in town until say Nov some time and so didnt have time to see Plaintiff Claim or Examination documents and when he did have time it was too late...And i fear the judge will throw out the default judgment and we start the whole process over again and have to go to trial....

The problem i have is that i paid the defendant back in May 24th from my Credit card and from a Line of Credit (via a Bank Draft) and he didnt do the work and actually caused damaged to my property and so while this continues to drag on for now almost 7 months i keep incurring interest on the money borrowed to pay him way back and my Insurance Premiums on my home has gone up because he actually made my home worse (via not finishing in time -- on his invoice he wrote he would be done on June 2nd and knew that any delays would potentially cause my insurance to go up because Insurance comapny was inspecting several times)....

Is there anything i can do....besides someone potentially saying "go talk to a lawyer"?

Thank you for all those who cared to help!

Cynthia Joffrion · [**Buy Web Names**] #2 (**permalink**) 12-20-2007

Unfortunately the burden of proof is on you. This means you must prove that he received the Plaintiff Claim and that he did not do the work.