In an accelerated possession claim, if no written request for judgment is submitted by the claimant and no defence submitted by the defendant Bob has claimed possession of a property from Alice. Alice has received the form from the court and not returned hers within the allotted 14 days. Under normal possession claims, the passage of this time under Civil Procedure Rules Practice Direction 55A entitles Bob to submit a written request to the court for a possession order without a hearing. However, if he does not submit this and Alice never defends the claim, then it will not go before a judge until one of these things happens and if neither does for 3 months then it will be automatically stayed. However, if Alice defends the claim before Bob writes in with his request for judgment, then it is as if she had done so within the 14 day time limit. It has been suggested by a professional advisor that the above is not true, however, in case Bob has filed an accelerated claim for possession, in which case if after the 14 days no defence has been received from Alice, then it will automatically go before a judge. But I have not been able to find any basis for this claim in the relevant CPR/CPD 55A. Is it correct? And if it is, can an accelerated claim which received no defense within the allotted deadline from Alice and resulted in a possession order being issued by the judge erroneously based on an error of law given all of the information that was apparent in the claim form be subsequently appealed by Alice even though she did not punctually submit her defense form within the 14 day time limit?
I don't wish to gainsay or contradict a &quot;professional adviser&quot;, especially as I have no idea on what information they based their suggestion. All I can do is direct the OP to the relevant extracts from the section headed &quot;II ACCELERATED POSSESSION CLAIMS OF PROPERTY LET ON AN ASSURED SHORTHOLD TENANCY&quot; in the Civil Procedure Rules, especially my emboldened text at the end of Rule 55.15. Rule 55.14 (1) A defendant who wishes to – (a) oppose the claim; or (b) seek a postponement of possession in accordance with rule 55.18, must file his defence within 14 days after service of the claim form. (2) The defence should be in the form set out in Practice Direction 55A. Rule 55.15 (1) On receipt of the defence the court will – (a) send a copy to the claimant; and (b) refer the claim and defence to a judge. (2) Where the period set out in rule 55.14 has expired without the defendant filing a defence – (a) the claimant may file a written request for an order for possession; and (b) the court will refer that request to a judge. (3) Where the defence is received after the period set out in rule 55.14 has expired but before a request is filed in accordance with paragraph (2), paragraph (1) will still apply. (4) Where – (a) the period set out in rule 55.14 has expired without the defendant filing a defence; and (b) the claimant has not made a request for an order for possession under paragraph (2) within 3 months after the expiry of the period set out in rule 55.14, the claim will be stayed.
The law regarding proof of service allows service of summons by publication in case a defendant "is not a resident of the state, but has property therein and the court has jurisdiction of the subject of the action". Plaintiff must file an affidavit saying that he believes that you are not a resident, and he either mailed the summons to you or states that your residence is unknown. Knowing how to contact a person is not exactly the same as knowing their residence, so the statement in the affidavit might be true. There is a one year limit on your right to defend and reopen if not served personally. The statute of limitations tolls after the cause of action has accrued (which I suppose would be defective service of the summons, viz. perjury in the affadavit). For recovery of real property, the time would be ten years. The court rules allow that "At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued". (This is clearly a matter that your attorney needs to address).
The ordinance is not very specific about how notice is to be given: therefore, it need not be in writing, and it need not be sent by mail. It would not be surprising if the "notification" came in the form of a city person inspecting the reported obstruction, walking up to the house and knocking and finding nobody home (thus triggering the "In case the owner cannot be found" condition), whereupon the city removes the rocks. That clause does not mean "In case we do not know who the owner is", it almost certainly means "in case the owner cannot be contacted immediately". Article III is in general about obstructions on streets, which are not allowed, except by permit in section 78 under "Permit to Obstruct Traffic Lane". Assuming that no obstruction permit was obtained, what usually happens is that an officer is sent to tell the owner to remove the obstruction (more or less immediately), and if nobody is at the site whom they can tell, they probably won't go any further (e.g. asking neighbors where the owner is). There is no legal definition of "reasonable time", instead the law simply takes that to mean "the amount of time a reasonable person would require". It would thus depend particularly on the size of the obstruction and the volume of traffic. One measure would be how quickly the rocks were moved -- if it was a matter of days and there was no notice, written or otherwise, then there would not be the kind of urgency that might justify the "We knocked and nobody was home" version of notification.
Note: The answer to the question is not the same in every U.S. state and territory. I have provided definitive answers only when there is unanimity or near unanimity. Did the deceased's family obligate themselves by not returning the the first service, that of the Notice of Appeal? No. Unless they expressly agree to do so in writing to be responsible for a decedent's debts (which almost never happens in the U.S.) next of kin of have liability regarding the debts of a decedent (at least by virtue of being next of kin, obviously, if they were, example co-defendant in a case who participated in the wrongful conduct, that could be another matter), except that it may result in a claim against the probate estate which reduces the size of their inheritances (potentially to zero), if timely asserted in the probate estate. As the next of kin are they obligated to receive the mail addressed to the deceased? No. Also, counsel for a decedent are terminated as counsel as a matter of law upon the death of a client. It is customary for a lawyer in the case (often, although not necessarily, the lawyer for the decedent if the decedent was represented by counsel at the time of death) to file a document usually entitled "suggestion of death" in the pending case when someone dies. But, no one is obligated to do so, and if the party is self-represented in the case (a.k.a. pro se), or that party's lawyers have withdrawn from the case, neither the decedent's former lawyers, nor anyone else in the case, may even be aware of that fact that the party to the case has died. What would be a possible remedy to keeping the claim active against this defendant albeit deceased defendant? File a claim in the estate of the decedent if the deadline for filing claims has not lapsed (which two years later, it may very well have). Normally, either a claims deadline that functions by operation of law (e.g. a state law non-claim deadline one year after the date of death), or a claim deadline arising from publication of a notice to creditors in the legal section of a newspaper in the area where the decedent died in a manner prescribed by state statute, would bar the claims, especially if the status quo was that they had been dismissed at the time of the decedent's death, even if there were still undistributed assets left in the probate estate after the deadline for filing claims has expired. It may also be possible to do a substitution of parties of the decedent's probate estate for the decedent in the pending case, if a probate estate has been opened and the deadline for filing claims has not yet lapsed. If a probate estate has not been opened, usually, after a certain amount of time, a creditor may open up the estate without the consent of the next of kin, or a public administrator will be appointed if there are no next of kin who have done so, and there are assets left to be managed in the probate estate. The law governing exactly when a probate estate has liability for the debts of a decedent incurred during life is a matter of state law that varies in significant detail between different states within the United States and is quite technical. I've written a couple of Colorado Bar Association journal articles on that subject applying Colorado law (Andrew Oh-Willeke, "Creditor's Rights In Probate - Part I and II", The Colorado Lawyer, May 2015 and June 2015). Note that the general rules may not apply in all cases to lawsuit brought "in rem" (i.e. adjudicating rights in a particular piece of property) although those kinds of cases aren't very common in federal court and would rarely involve the fact pattern set forth in the original post. Footnote Re Federal Civil Procedure For many years there was a lack of clarity, and/or a split of authority between U.S. Court of Appeals Circuits, over the proper time to appeal a ruling dismissing a party entirely from a case as a matter of federal civil procedure in various circumstances. It was resolved a few years ago, but I don't recall the outcome of that case. The general rule, expressed in Federal Rule of Civil Procedure 54(b) is that the dismissal of a party in a case cannot be appealed unless the trial court certifies that decision as final for purposes of appeal which is a discretionary decision for the trial court judge.
Be careful: from the Wikipedia article, it appears that there is a state criminal trial and there will be a federal criminal trial. In addition, there is a federal civil suit which incorporates some stats law claims. The defense in each trial may be different. Have you read the complaint in the civil case? As an example, count 1 alleges, in paragraph 214, that the defendants' actions were &quot;without legal cause.&quot; An obvious defense is to show that the actions were actually justified under the law. The law under which they would have been justified would be state law. It's still possible that the state law justification isn't sufficient, but that is another point to be argued in court. If they can't prevail in showing that state law did authorize their actions then the act was certainly unlawful under both state and federal law. Do defendants have standing to invoke self-defense given the context or did they give this up at some point in time? Standing is a threshold that plaintiffs must meet. But defendants can certainly argue self defense. Whether they can prevail on that argument depends on the facts of the case as determined by the court, in particular by the &quot;finder of fact,&quot; which is the jury in a jury trial and the judge in a bench trial. The facts that I'm aware of in the public record suggest that the defendants would not prevail on such an argument, but that doesn't deprive them of the right to advance it in court. If someone claims that Arbery was grabbing for the shotgun then the defendants have a right to introduce any evidence of that fact that they may have. It is for the finder of fact to judge the credibility of the evidence.
An appeal may be made by a plaintiff, prosecutor, defendant or other interested party, so the term 'defendant' is not very useful; the party opposed to the Appellant (and served with the appeal) is usually called the Respondent. A contested appeal just means that the Respondent wishes to be represented at the appeal, presumably to fight it; most appeals are contested, but not all. Unlike a first-order case which may go by default, an uncontested appeal will still have to have some sort of a hearing; you are, after all, saying that a court decision should be set aside, and the Respondent's views are not necessarily relevant. It is, though, fair to say that an uncontested appeal will have a greater chance of success.
There are a variety of reasons a judge might be disqualified. It could be that the judge was previous an attorney who represented someone (defendant, victim, key witness) involved in the case, it could be that the judge was a family member or former employer of the defense attorney, it could be that someone close to the judge or the judge personally was a victim of another crime committed by the person, it could be that the defendant or the defendant's family was a personal or family friend. The prior involvement in the protective order case could be a factor as well. The record isn't detailed enough to know. "Held" in this context means that the hearing scheduled for 1:30 p.m. on that date noted was actually conducted, rather than being continued or vacated for some reason. Your guess is as good as mine regarding "CFW" and "DB" in this context. My best guess for DB is "daily booking" and CFW might be either the removed or replacement judge's initials (e.g. Carol Francis Wilson) but those are just wild guesses. Neither appears on a list of Oregon Department of Corrections acryomns or this criminal background check abbreviation list, or this list of Oregon law enforcement abbreviations. The only matches on this list of law enforcement abbreviations and none of the matches to DB (dog bite, dead body, detective bureau) make a lot of sense in this context.
If I don't attend the hearing, can I get evicted? Yes. Never ignore a court hearing date. The Tribunal could otherwise impose an outcome without hearing your side of the story. If you ultimately paid the rent and the late fees, and the Tribunal didn't know that, you could be unjustly evicted if you don't present your side of the story. It could simply be a case, for example, where the landlord confused your non-payment with someone else's. But after the Tribunal rules, fixing that mistake is much more difficult than fixing it at a hearing. It could be that making two late payments that are cured later is still grounds for eviction under the lease, although I very much doubt it. In that case, it still pays to show up to make sure that the Tribunal has all of the facts favorable to you before it makes its decision.