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 XXXX and pursuant to OCGA 9-11-60(d) (2); and the standards of XXX et., al., Supreme Court of Georgia No. 46899, (385 S.E.2d276), (259 Ga. 617) (1989).; 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 September XXX, the Respondent obtained a Temporary Protective Order (hereinafter “the Order”) against Petitioner in the Cobb 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 October 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 XXX. 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 XXX, 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.”
- The No-Contact Order was fraudulently obtained
“When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” Patterson v. Coleman, 252 Ga. 152 ( 311 S.E.2d 838) (1984). Under Georgia law, an individual may be served by delivering a copy of the summons and complaint to him personally “or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” O.C.G.A. § 9-11-4(e)(7).
“Where a defendant claims there was a failure of service, the trial court has the authority to decide as a factual matter whether service has occurred. O.C.G.A. § 9-11-12(d). This finding will not be disturbed as long as there is ‘some evidence to support’ it.” Jacobson v. Garland, 227 Ga. App. 81, 83 (1997).
In the said case, the Respondent served the evacuation order at the house where Petitioner had never visited since September 15, 2021. Respondent was aware that Petitioner never resides in the said house. Accordingly, service was not done pursuant to the required process. As a result, Petitioner avers that the service is null and void, and the evacuation order is of non-effect.
Another instance of the Respondent’s fraudulent conduct happened in the eviction case, where the Respondent presented an Affidavit of service in court, falsely alleging that Petitioner is in possession of the house. Respondent presented the said Affidavit knowing very well that Petitioner had never been to the house since September 15, 2021. Respondent also knew that Petitioner had never lived there and only visited Respondent at her request when in town and as normal dating transpires with long-distance relationships. Further, the Respondent’s attorney sought a default judgment and $3,000 in attorney fees, in the said eviction case. The attorney did this while cognizant of the fraudulent nature of the case. This further shows the extent of fraudulent conduct that Petitioner is exposed to.
WHEREFORE, Petitioner moves the Court to set aside the no-contact Order entered on or about October 12, 2021, for fraud. 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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