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  1. #1
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    Default Can You File a Case for Trover After Obtaining a Money Judgment

    My question involves a consumer law issue in the State of: Georgia

    On October 2012 a crooked mechanic (Defendant) agreed to do an engine replacement for my 1997 Nissan Sentra GXE sedan at his shop formerly called B&M Automotive Brokers. He agreed for me to get the replacement engine for him to install, while he waits. The shop closed on February 2013, and the crooked mechanic took my car and hired another person to move it for him, instead of returning my vehicle as desired. Up until now, the promised work has never been performed onto my car by the Defendant, and he has never returned my vehicle as well--he has been saying, "I don't have the car," and "I don't know where it is," to avoid returning my car while he's hiding my vehicle out of (my) sight (theft by conversion). On May 2013, I filed a "theft by conversion" police report with the Cobb County Police Department against the Defendant. I continued providing some tips to Cobb County's auto detective and police officers in locating the vehicle, despite that I have not received any responses from the detective.

    After being patient enough working with the police and finding where my car may have been and sending my third property demand letter to Defendant, I filed a "failure to return property" or "theft by conversion" warrant against Defendant at Cobb County Magistrate Court on October 2013. The hearing notice for December 9, 2013 listed "criminal trespass" by mistake instead of "failure to return property" or "theft by conversion". On December 2013, the Magistrate judge found probable cause for issuing a criminal warrant, for "criminal trespass", against Defendant for failure to return my property as demanded. Defendant was bailed out quickly, and I have received the notice from the Cobb County Solicitor's Office to try the "criminal trespass" case, which was later dismissed because there was no evidence of criminal trespass--all I had was just evidence of Defendant's commission of theft by conversion crime.

    On April 2014, I took Defendant to Magistrate Court/small claims court by having a complaint summons served to him by the Cobb County Sheriff, seeking to have my car returned to me (trover action) and to receive the Kelley Blue Book fair market value of my car in case my car is damaged beyond repair. On July 14, 2014, a Magistrate court hearing occurred and I was awarded only the "Court's value" of my car of $1971.23--the KBB's fair market value of my car was higher than that ($2,626.00)--since the Court lacks jurisdiction in trover issues--I found this out later from the same court.On October 3, 2014, I have confronted Defendant in person, while audio recording him, and he admitted that he hid my car by giving it to another person to hide without my permission.

    On November 2014, I returned to Magistrate Court with Defendant for a motion to compel discovery hearing for some of the unanswered Interrogatories. I was seeking the actual location of my car, and that of some other items of Defendant, but I was only given the location a few of his items. I did not get the actual location of my car from the Defendant's words because the new Magistrate judge advised me that wanting to have a car returned is a trover issue, and it should be handled at the Cobb County Civil State Court. I went along with her advice. Between December 2014 and March 2015, I have filed a trover action complaint for theft by conversion against the defendant. Many attempts were done by the Cobb County Sheriff deputies in trying to serve the "evasive" defendant with my trover action complaint.

    On March 22, 2015, Defendant was personally served, with my trover action complaint, by a Cobb County Sheriff deputy. Thirty days after that date, Defendant has not filed an answer to my complaint--of course a default judgement would result. On April 2015, I requested for a non-jury trial, of my trover action case, to se set in July 2015. On May 2015, I have issued another property demand letter, via certified mail with return receipt service, to Defendant to return my vehicle. From that point on, defendant still has not returned my car. On June 2014, I have received a notice from the Cobb County Civil State Court that my non-jury request for a trover action court hearing is set for pre-trial on October 26, 2015. Later on that month, I have submitted a completed consolidated pre-trial order, so I could "avoid" the pre-trial.

    So today, or October 26, 2015, the pre-trial hearing took place at the Cobb County State Civil Court for my trover action case of theft by conversion. Appeared before the judge are Defendant, Defendant's attorney, whom I have just met in person, and myself. Despite that Defendant's attorney appeared late, he spoke with Defendant and me separately about the case. When Defendant's attorney and I stepped outside the courtroom for a private discussion and to look at my evidence, the attorney asked me if I have a money judgement. I said to him that I have one, but I have never collected a penny on it! The attorney asked me, "How much?" I estimated $1,971.00. I began informing the attorney that he has not timely filed an answer to my trover action complaint. The attorney agreed and suggested to go back to the judge to proceed with the pre-trial hearing. I filed motion to judge for a default judgement due to no timely answer from the defendants. None of the defendants filed a timely answer, not even a "res judicata" answer.

    What the judge had first in mind was to issue a default judgement against the defendants, until Defendant's attorney began to for a dismissal of the trover action case because I have received a money judgement for my car. The judge asked me, "And you're asking for the return of the vehicle?" I replied, "Yes." The judge said to me, OK, however...you got a money judgement. This was the place for the...no wait uhm...I take that back...what I meant to say, if you are asking for the return of the vehicle...then I don't know if this is the court for that. It might have been Superior Court." "It's Superior Court your honor," agreed Defendant's attorney. The attorney kept pushing for a dismissal.

    The judge asked him, "Can I do that when you are in default?" I looked at the judge skeptically and wondered why she asked Defendant's attorney for her ability to issue a dismissal. Defendant's attorney responded, "Well, that's an issue I would have to resolve. I don't have the answer." The judge said, "I don't know how I can go about claims that I don't have a jurisdiction to...that's my issue." The judge turned to me and said, "You are asking for a relief? You are asking for the vehicle to be returned, and I don't know if I can do that. Maybe you would have to go to Superior Court?"

    I began to show the judge my completed Cobb County State Civil Court General Case Initiation form, which has a check-marked box and "trover" next to it to let her know--as in she should have known--that the Cobb County State Court does have jurisdiction over trover actions. The judge rejected and replied, "I don't think that is necessary, now." The judge began to take my word and informed me that a trover action is not the big issue. She replied, "The only issue procedurally is...uhm...whether I can take this action, in which I am thinking through, when the defendant is in default. Uhm...I am thinking that it is not a default unless it is raised as "judicata" . Well....I don't know. What I think I'll do is....take this under advisement."

    The judge ordered the plaintiff (me) and the defendants to "submit a brief letter about the law, and where she should be going with it" by Monday, November 2, 2015. In a nutshell, she wanted us each to write a letter about the law concerning a "judicata" and whether we each believe if the case should proceed to a non-jury trial hearing (with her again?) or not (as default judgement or dismissed). I reminded the judge that I was confident in being in the correct court (State Court) to bring about a trover action. The judge answered, "Yeah, right, right. I understand. That's fine!" The judge did not make any rulings at pre-trial until she have received a letter or both letters from one of or all of us. She ended the pre-trial hearing with an assignment for each of us to write letters on how the case should legally proceed, have each filed with the court clerk, and have each letter mailed to her.

    I am seeking a default judgement against the case due to no filed answer from the defendant, not even a "res judicata" one, so I can get try to get my car back. I am writing the letter and I want it to be very effective for me to get the order for return. I plan to have the letter completed by Thursday. So far, the Cobb County Magistrate Court does not have competent jurisdiction over trover/replevin actions. According to Georgia code 9-12-40, the timely answer/plead of "res judicata" must meet all three aspects to apply:

    1. Same cause of action...
    2. Same parties involved...
    3. Previous adjudication by the courts of competent jurisdiction.
    Also, Georgia code 9-5-9 came to my mind.

    Now my questions are, how do you think the case show legally proceed in my favor? Is it possible for me to use my money judgment to get my car back, instead? May I "transfer" my judgement to another court? Are there any other options for me to get a replevin or an order to make the defendant return my car as is? In case the judge rules in the defendants' favor, should I appeal the decision?

  2. #2
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    Default Re: Can You File a Case for Trover After Obtaining a Money Judgment

    See Holley v. Mutual Investment Corp., 87 SE 2d 236, 87 S.E.2d 236 (1955).
    Quote Quoting Holley v. Mutual Investment Corp, emphasis added
    The defendants excepted to the sustaining of the demurrer to their purported plea of res judicata. "Before the doctrine of res judicata can be applied, it must appear that a judgment has been rendered in a court of competent jurisdiction in a former litigation between the same parties, based upon the same cause of action, in which event the litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue under the pleadings in the previous litigation." House v. Benton, 42 Ga. App. 97 (155 S. E. 47). In the present case the defendants filed a purported plea of res judicata, in which they set forth as an exhibit copies of the pleadings and judgment in a prior suit between the plaintiff and the present defendants. The suit in the previous action was upon a note for the balance due on the purchase price of certain personal property, which was sold under a title-retention contract. The plaintiff also prayed for a special lien upon the personal property covered by the conditional-sale contract. The present action is one in trover, and not an action to recover money due under the conditional-sale contract. Accordingly, the cause of action is not the same in each case, and the trial judge did not err in sustaining the plaintiff's general demurrer to the purported plea of res judicata. See Allen v. Community Loan &c. Corp., 81 Ga. App. 65 (57 S. E. 2d 703).
    It's an old case, so you'll want to do some further research into its continued applicability, but on a quick search I didn't see anything that contradicts it.

    You can also, of course, point out that without regard to a money judgment, the defendant has no right to continue to withhold a vehicle titled to you -- you hold title, so you are entitled to possession. To the extent that the recovery of the vehicle provides a basis for relief against the money judgment, that's something that they can address by a post-judgment motion in the other court, or in association with the settlement of that judgment in association with the return of your vehicle.

  3. #3
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    Default Re: Can You File a Case for Trover After Obtaining a Money Judgment

    You hit the nail right on the head! Needless to say, there are two different charges linked to the same party. One is "theft by conversion", which was done by the Cobb County Police and detective. The other is "criminal trespass", which was claimed by another Cobb County police officer when I filled an arrest warrant for "failure to return property". The money judgement was based on the "criminal trespass" suit at Magistrate court.

    - - - Updated - - -

    Quote Quoting Mr. Knowitall
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    See Holley v. Mutual Investment Corp., 87 SE 2d 236, 87 S.E.2d 236 (1955).

    It's an old case, so you'll want to do some further research into its continued applicability, but on a quick search I didn't see anything that contradicts it.

    You can also, of course, point out that without regard to a money judgment, the defendant has no right to continue to withhold a vehicle titled to you -- you hold title, so you are entitled to possession. To the extent that the recovery of the vehicle provides a basis for relief against the money judgment, that's something that they can address by a post-judgment motion in the other court, or in association with the settlement of that judgment in association with the return of your vehicle.
    So, I take it's a "yes, I can file for a trover action after getting the money judgment", right?

  4. #4
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    Default Re: Can You File a Case for Trover After Obtaining a Money Judgment

    At risk of repeating myself,
    Quote Quoting Mr. Knowitall
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    It's an old case, so you'll want to do some further research into its continued applicability, but on a quick search I didn't see anything that contradicts it.

  5. #5
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    Default Re: Can You File a Case for Trover After Obtaining a Money Judgment

    Quote Quoting Mr. Knowitall
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    At risk of repeating myself,
    So today, I have finally received the judge's decision in the mail regarding a trover action. The judge decided to dismiss the case (in favor of the defendant)--maybe biased. I believe that she may have disregarded the case that you have pulled up--thank you. Currently, I am writing an appeal to the Georgia Court of Appeals. What should I do to make my appeal stronger?

  6. #6
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    Default Re: Can You File a Case for Trover After Obtaining a Money Judgment

    Quote Quoting gmdahootersman
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    So today, I have finally received the judge's decision in the mail regarding a trover action. The judge decided to dismiss the case (in favor of the defendant)--maybe biased. I believe that she may have disregarded the case that you have pulled up--thank you. Currently, I am writing an appeal to the Georgia Court of Appeals. What should I do to make my appeal stronger?
    In order to answer that one would need to read the applicable documents from the trial court proceeding, in particular the arguments made by the parties on the trover issue and the judge’s decision on the matter.

  7. #7
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    Default Re: Can You File a Case for Trover After Obtaining a Money Judgment

    Quote Quoting Taxing Matters
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    In order to answer that one would need to read the applicable documents from the trial court proceeding, in particular the arguments made by the parties on the trover issue and the judge’s decision on the matter.
    Right, I am comparing my letter of advisement, which was never mentioned in the judge's decision/order letter, with Defendant's letter of advisement, which was mentioned in the judge's letter. Between the money judgement case and the trover case, both causes of action are different (failure to return property because Defendant "lost it and does not know where it is and who has it" and Defendant did theft by conversion because it was admitted by Defendant that the vehicle is hidden with a third party respectively) and by Georgia law and according to the Georgia Court of Appeals, a trover case can and may be obtained as long as a money judgement is not satisfied, regardless of whether a money judgement has been obtained or not. This should be convincing to Superior Court or Court of Appeals. I would have been better off not writing a letter of advisement to the State Court judge.

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