IN THE MAGISTRATE COURT OF XXX COUNTY
STATE OF XXX
| XXX,
Petitioner,
vs. XXX, Respondent |
civil action No.: XXX |
MOTION TO SET ASIDE NO CONTACT ORDER
COMES NOW, Petitioner XXX and pursuant to OCGA 9-11-60(d) (2); and the standards of XXXX, et., al., Supreme Court of Georgia No. XXXX files this Motion to Set Aside the No-Contact Order on the grounds of fraud. The Petitioner shows with specificity the grounds for which the Court may Grant his Motion.
STATEMENT OF FACTS
On or about XXX, the Respondent obtained a Temporary Protective Order (hereinafter “the Order”) against Petitioner in the XXX County Superior Court. She made the said filing on the false allegations that Petitioner had threatened physical harm against her as well as had the Respondent removed from the home.
Consequential to the filing of the said Order, Petitioner had the option of challenging the illegally acquired Order but instead negotiated on a no-contact Order on or about XXX. It is instrumental to note that the Respondent’s attorney was aware that the Order \ was frivolous, so he pushed for mediation between the Petitioner and the Respondent.
Interestingly, later on, when Petitioner wanted to rent an apartment after the negotiated settlement in Fort Lauderdale, FL where he resided before the actions of Respondent, he discovered that the Respondent’s attorney had filed an eviction case against Petitioner without Petitioner’s knowledge. It is worth noting that the said filing was done although Petitioner had never been to the house since XXXX. Besides, Petitioner had never lived there and only visited Respondent at her request when in town and as normal dating transpires with long-distance relationships. Furthermore, Respondent served the said Order at the house, knowing very well that Petitioner never lived there and had never visited the house since XXX. Petitioner avers that Respondent did this in a bid to obtain a default judgment against Petitioner knowing that the Petitioner could never be served at the address in the future in attempts to obtain a fraudulent default judgment.
During the mediation procedure, Respondent never disclosed to Petitioner that she had filed an eviction case against Petitioner. She induced Petitioner to sign the no-contact order yet she had filed an eviction case against him the previous night.
ARGUMENTS
- Standard of Review
The Civil Procedure Act does not preclude the Magistrate Courts from applying the Civil Procedure Act. This was affirmed by the Supreme Court of Georgia in W. Gerry Howe v. William Douglas Roberts, et., al., Supreme Court of Georgia No. 46899, (385 S.E.2d276), (259 Ga. 617) (1989), where the Court stated in pertinent part that:
[T]he language of OCGA § 15-10-42, that magistrate courts are not subject to the Civil Practice Act, must be read to permit, rather than require, magistrate courts to follow the provisions of the Civil Practice Act, or any other appropriate rules and regulations relating to pleading, practice, and procedure, where to do so would “administer justice” under OCGA § 15-10-44.[6] Certainly such language should not be construed to preclude the magistrate’s use of the Civil Practice Act where such use is consistent with OCGA § 15-10-44.
According to the Court, “other than those matters specifically addressed by OCGA § 15-10-40 et seq., the “general rights” in common law practice pre-existing the Civil Practice Act are to be applied in magistrate court.” (Emphasis added). See Howe at 144. The Court further stated thus: “the [magistrate] judge shall conduct the trial in such manner as to do substantial justice between the parties according to the rules of substantive law. All rules and regulations relating to pleading practice, and procedure shall be liberally construed so as to administer justice.”
- Grounds for Setting aside the No-Contact Order
- The No-Contact Order was fraudulently obtained
The Respondent’s attorney fraudulently negotiated for the No-Contact Order knowing that the Respondent had filed a fraudulent eviction notice against Petitioner. The Respondent had filed an eviction notice against Petitioner the previous night before the parties negotiated for the No-Contact Order. The Respondent and/or Respondent’s attorney was obligated to inform Petitioner of the eviction notice before negotiating the No-Contact Order.
- It is impossible to access the Respondent’s AT&T account
According to paragraph 28 of the No-Contact Order, the Respondent was obligated to reimburse Respondent by sending a check to Respondent’s attorney. The said paragraph further provided that Petitioner should make the said payment unless or until he can transfer the accounts out of Petitioner’s name. The deadline for Petitioner’s obligations therein was set at XXX.
Petitioner avers that first, he does not own the AT&T account. And for that reason, AT&T would not communicate with him since he is not the account-holder.
- It is impossible to access the Respondent’s Bank of America account
Paragraph 32 of the No-Contact Order obligates Petitioner to release Respondent and her parents from the credit balance for the Bank of America corporate account.
Petitioner avers that he lacks standing to access the account, or obtain information thereof. Notably, Petitioner is neither an official nor a shareholder of the company. In that regard, Petitioner avers that the bank will only communicate with the Respondent. Further, on the Petitioner and the Respondent already solved the issue with the bank when they visited the bank a week before XXX.
- Respondent has violated the No-Contact Order several times
Petitioner avers that Respondent has violated the said Order three times. First, when Petitioner’s friend, Tony, went to pick Petitioner’s items from the house, the Respondent attempted to pass messages to Petitioner through Tony. Besides, she engaged Tony and the mover into the parties’ affairs by giving them her side of the story.
Second, Respondent has communicated with Tony about Petitioner’s financial matters, and has presented him with information to pass to Petitioner. Third, Respondent contacts Petitioner’s friend, XXX, whom she met when Petitioner dropped off his dog for training. Respondent should not communicate with the said individuals because they are Petitioner’s friends and she only met and knew them after knowing the Petitioner.
It is evident that by the said actions, Respondent violates paragraph 12 of the No-Contact Order that prohibited any contact, direct or indirect, between Petitioner and Respondent.
WHEREFORE, Petitioner moves the Court to set aside the no-contact Order entered on or about XXX, on the aforesaid grounds. Petitioner also prays this Court sanctions the Respondent for her frivolous and malicious acts as alleged herein. Thirdly, Petitioner prays this Court sanctions Respondent’s attorney for contempt of court because he misadvised Respondent to frivolously enter the no-contact Order, and to file a frivolous and malicious case against Petitioner. Petitioner also prays this Court award Petitioner $5,000 for legal fees. Lastly, Petitioner prays for any other Order this Court deems just.
Respectfully Submitted,
DATED: __________
CERTIFICATE OF SERVICE
This is to certify that I have served a true and correct copy of the Motion by U. S. Mail with proper postage affixed thereto to insure delivery as follows:
[ENTER RESPONDENT’S ADDRESS]
DATED: __________
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