Can anyone explain Small Claims Court to me?

[mia1181]

Ugh I am so embarrassed to be posting this..... Ah well I am too lazy to get a temporary screen name...

Anyway DH lent a friend some money ($10,000). Stupid, I know.... Well I don''t really know the whole story but this friend has borrowed from us in the past and has always repaid. He also had a car that he was going to sell to pay back DH right away so DH was comfortable with this.

Anyway he sold the car and transferred $9,999 (bank maximum) into our checking account over a month ago. It was over and I was relieved. Well since then DH and his "friend" got into a petty argument. His friend sent me an email complaining that DH isn''t a good friend and that he was reversing the payment. We called the bank and they assured us that he couldn''t do it. Well they were wrong, because on Monday DH checked the account and sure enough there is a $9,999 reversed payment and we were even charged $32 fee for him doing it! We called the bank and they say they can''t do anything about it.

So we have gone back and forth with him and he doesn''t seem like he is going to pay us back. At times he says he will pay us back eventually, and then other times he says "why don''t you guys just cut your losses and forget about me?"

So we are thinking we will take him to Small Claims Court, but we have some questions:

1. He is in NY and we are in CA, where do we need to file a claim?

2. How much work goes into a small claims case? We are pretty sure we will win since we have emails where he admits to owing and then threatens to not pay us back. But we can only sue for $7,500, so we need to know if it''s going to cost us a lot to even pursue this. We mostly want to do this because of the principle. He is stealing from us and we don''t want him to get away with it.

3. How do we serve him? He has changed his number and we''ve been in contact with his mother who says she doesn''t even know it. We don''t know where he is living either.

4. If we win is it going to be impossible to get the money anyway? He isn''t working at the moment and recieves some form of Disability, I think...

 

[Girlrocks]

DH was in a car accident with an uninsured motorist about 5 years ago. We sued and won $3200 in small claims court. We have never received a dime. The people never showed up at court, so we won by default basically. The man does not work, so they can not garnish his wages, and even if they could, they base the payments on what the person makes so it could take you 20 years to recoupe the money. We drive by the man''s house from time to time...he has a nice house, brand new car in the driveway, and there is NOTHING we can do to force him to pay. Basically, it really meant nothing that we took the time and money to pursue the court case, and WON...we will never see the money. I live in Maryland.

 

[Elmorton]

Can you go to small claims court? Ours is a 5k max.

Here''s my experience with small claims (and there is a nice thread somewhere about it, with some helpful PSer advice, I think):

1) Have EVERYTHING in writing and documented. I made up this huge binder with e-mails, timelines, receipts, phone records (highlighted), estimates, etc. It looked like a freaking science project and took forever to assemble, but in the end, it''s what won our case. In the front I had an introduction where we explained what happened (with corresponding figures) and in the end I had a conclusion where it explained why we asked for what we did.

2) I was shocked how quickly it went. It''s nothing like Judge Judy - we expected the judge to ask questions. She did not. You''ll go first and explain your side of the case. Then the other guy will basically have a rebuttal. Then you''ll have the opportunity to ask questions of him (must be an actual question). Then he can ask you questions. Then the judge says "Thanks for your time, I''ll have a ruling in 30 days."

3) The ruling is written by a clerk. This is why having your entire case in writing is so, so important.

4) You have to PROVE that he''s stolen from you. We actually lost part of our case - the guy was supposed to fix our fireplace, so we had all the e-mails, the contracts, everything - but when we got to court, he said the fireplace was working. I know this sounds nuts, but it hadn''t really dawned on us that we had to prove it wasn''t functional - we had the statute from the state saying that the type of fireplace the guy had installed wasn''t a legal device, but we didn''t have a statement from a licensed chimney sweep saying that the device we had was the device that is illegal (DUH! - this would have taken no time at all to do, especially since we HAD an inspector come to see it) - we just had an estimate as to what would make it legal. To me, that''s a minute technicality, but to the court, it was major. So, in your case, you have to prove that this guy did in fact BORROW the money and that he has no intent to pay you back. If you have these things documented, then it should be relatively easy, though if I had to do it again, I''d go to a lawyer - not to argue the case for me, but as a consultant to help me prepare.

I hated going to small claims because to me it was the ultimate in confrontation and I hate confrontation - I had a two martini lunch that day, haha. But to get things over with felt good (not that they''re exactly over - we have yet to see a cent). Which reminds me, going to court doesn''t mean you''ll likely see your money right away. For us, it was a month for him to answer the claim, 3 months to get a court date, it''s been 3 months since the case, and today actually was when we sent forms to the sheriff to have wages garnished, which means it will be another month - if we''re lucky - before we see a dime, bringing it to 8 mos total. So, if you think your guy can work out the fight, it might make sense to work with him individually, but if you think there''s no way there will be a reconciliation, then court is probably your best option.

 

[Steel]

Oh no, that is terrible.

I have no clue about your Courts system but I ask why you don't sue him outright? If the threshold for small claims is 2.5k under your special damages then I would consider taking him to Court - but only if you believe he has the means to pay you back. A judgment is cold comfort without $$$.

Another thought is in relation to the withdrawal of the funds from your account. How was this explained to you? Was it a same day money transfer or a cheque? Was the money ever listed as 'cleared funds' if so then it seems shady that the money was taken away and I wonder if your Bank acted appropriately.

Finally I feel it would be best to get representation Iif you aren't thinking of this already) of come sort especially to contact this 'friend' to ask him to forward the money owed to you or you will have to pursue him and reference this request in relation to costs.

ETA: did he sell the car in the end? If not he could claim it was a conditional contract; he repays once (and if) the car is sold. No car sale = No pay back.

Although the payment of almost 10k to you does acknowledge a debt, unless he claims it was a mistake hence the removal of funds from your a/c - possibly if the car sale fell through....

 

[mia1181]

Thanks for the information guys!

Girlrocks- That''s exactly what I was wondering. It might be a lot of trouble to never see a dime anyway!

Elmorton- Thanks for all the info! I think we have a pretty solid case because we have emails were he admits to borrowing the money witht the intention of paying it back and then says he is reversing the payment because he is mad at my husband. But yes we can definitely write eveything up and be prepared.

Steel- Yes he did sell the car. I guess it was a conditional contract and he sold the car and paid my husband back originally, but then took the money back without our authorization. The way he did it was filed an affadavit (sp?) with his bank saying that he didn''t authorize the payment (total BS and I think DH actually has a voicemail from him where he says "I had to deposit $9,999 because they can''t do anything over that." The way he did that was we gave him our checking account number and routing number and it was an electronic transfer. I think the banks really can''t do anything because it is within his right to cancel a payment. The sad part is that it happened so long ago.... But I guess these protections are in place in case of identity theft (which I think is what he is claiming). We feel really let down by the bank....

 

[mia1181]

Oh and I don''t know about suing him outright because then I think we''d have to hire a lawyer and it would probably cost so much that it wouldn''t be worth it....

 

[Steel]

Over here once money is TT'ed (telegraphic transfer) it is pretty much a done deal unless the funds magically disappear from the sender's account such that the transfer cannot be honoured but that is almost a physical impossibility. So I am sorry that this creep had the right to swipe the money back from you and your DH.

I mention suing him outright as you are 'already' down 2.5k if your small claims cannot process a 10k claim. Talk to a Lawyer (or two) and see what he/she says. If you have a good case you may get it all back + costs.

This all happened 1 month ago - that is not a delay by any standards.

If it were me, I would make an appointment and set a legal hound on his tail.

ETA: I would guess that you and this creep share the same banking group. I imagine your bank would be less helpful in returning $$$ to another bank.

 

[treefrog]

I think many attorneys offer free initial consultations. I''d certainly be interested in seeing what they have to say.

I''d also be very interested in seeing what your bank manager had to say about it.

What a horrible situation. I am so sorry the two of you are caught up in this fiasco and hope for a positive outcome.

Treefrog

 

[purrfectpear]

Just so you''ll know, emails are not considered evidence of any kind. The headers are easily spoofed. I could make up dozens of emails that looked as though they came from you or were sent to you, and they might never have left my computer. Courts know that.

 

[mia1181]

Steel- Oddly enough he does have a different bank. Our bank said to take it up with his bank and his bank said there was nothing they can do. I tried to find information about it online but couldn''t find much. If it were that easy to do, you''d think people more people would do it (for instance buy something and then when you have the goods reverse the payment...) But I guess it is the same thing as stopping payment on a check. I don''t really understand it...

Well DH and I talked and decided that we could live with only losing 5k (especially since we may only get that with small claims or nothing anyway). We decided to send him an email saying if he would give us 5k he can keep the other 5. It''s horrible but I think he is going to do it. So we are paying him to get some of our money back.

At least it will be over and done with. He said he will deposit the money today or tomorrow so I think if he does deposit the money, legally we can no longer go after him for the other half. And we are having him deposit cash so he can never get to it again.

But I will have DH see a lawyer if it doesn''t happen today. I would much rather sue than have to sit here and beg him for our money back...

 

[mia1181]

Date: 8/5/2009 4:58:54 PM
Author: purrfectpear
Just so you''ll know, emails are not considered evidence of any kind. The headers are easily spoofed. I could make up dozens of emails that looked as though they came from you or were sent to you, and they might never have left my computer. Courts know that.

Yikes that stinks!

Couldn''t we bring a laptop to court and login the email there?

I think I have seen her read emails on the people''s court, no? Well maybe thats just for television....

 

[mia1181]

Okay we just got a response....

"I know u offered me to pay back 5 and keep the rest, I don''t need to keep your money I never did need to KEEP yur money, just borrow.
I''m still pissed, hurt, etc, getting a little better.
How do I pay u the 5? Banks are closed. I can do it thru western union, or mail a check, mail me yur addresses before we decide, I erased them"

I have no idea if he is planning to give back the other 5... Maybe he spent it?

Is Western Union secure?

 

[Steel]

Date: 8/5/2009 5:21:20 PM
Author: mia1181
Okay we just got a response....

'I know u offered me to pay back 5 and keep the rest, I don't need to keep your money I never did need to KEEP yur money, just borrow.
I'm still pissed, hurt, etc, getting a little better.
How do I pay u the 5? Banks are closed. I can do it thru western union, or mail a check, mail me yur addresses before we decide, I erased them'

I have no idea if he is planning to give back the other 5... Maybe he spent it?

Is Western Union secure?

1. I know nothing about western union and as you have not been fortunate with TT's I would only accept a major bank's bank draft sent registered mail to you. Over here that is as good as cash except it takes up to 7 working days to clear. But it is guaranteed to clear.

2. Only follow this though if you want to kiss buh-bye to the other 5k. Looks to me that by saying 'you offered me to pay back 5 and keep the rest', if he pays back the 5k you are agreeing that he no longer owes you both the remainder.

3. Although written in e-mail, it is interesting he noted the term 'pay back' & 'borrow' he clearly acknowledges some debt.

4. If you are hesitant to go legal at least you are in some contact with this fella, but I would still seek advices so you can serve his a$$ if required.

ETA: Sorry, I somehow missed your earlier post.

So you offered that he repay 1/2. I suppose if you are happy with that then get your bank draft and run. If you have already made the offer it could be deemed inequitable to chase the remainder even if your e-mail requesting 1/2 in full satisfaction were deemed inadmissible in your favour. It is such a lot of money to lose, but I suppose 10k is an even bigger amount of money to lose. Again, sorry you both are going through this. I'm sure you know what they say about 'no good deed......'

 

[neatfreak]

Date: 8/5/2009 5:21:20 PM
Author: mia1181
Okay we just got a response....


''I know u offered me to pay back 5 and keep the rest, I don''t need to keep your money I never did need to KEEP yur money, just borrow.

I''m still pissed, hurt, etc, getting a little better.

How do I pay u the 5? Banks are closed. I can do it thru western union, or mail a check, mail me yur addresses before we decide, I erased them''



I have no idea if he is planning to give back the other 5... Maybe he spent it?


Is Western Union secure?

WU is secure but there are significant fees involved. Have him send you a USPS money order instead. Usually safer and cheaper.

 

[mia1181]

Date: 8/5/2009 5:45:00 PM
Author: neatfreak
WU is secure but there are significant fees involved. Have him send you a USPS money order instead. Usually safer and cheaper.

I know I just looked it up and it would cost $200! So then we''d be down to 4,800... I am going to see if he has paypal but a money order might be the way to go.

 

[mia1181]

Date: 8/5/2009 5:43:54 PM
Author: Steel
1. I know nothing about western union and as you have not been fortunate with TT''s I would only accept a major bank''s bank draft sent registered mail to you. Over here that is as good as cash except it takes up to 7 working days to clear. But it is guaranteed to clear.

2. Only follow this though if you want to kiss buh-bye to the other 5k. Looks to me that by saying ''you offered me to pay back 5 and keep the rest'', if he pays back the 5k you are agreeing that he no longer owes you both the remainder.

3. Although written in e-mail, it is interesting he noted the term ''pay back'' & ''borrow'' he clearly acknowledges some debt.

4. If you are hesitant to go legal at least you are in some contact with this fella, but I would still seek advices so you can serve his a$$ if required.

ETA: Sorry, I somehow missed your earlier post.

So you offered that he repay 1/2. I suppose if you are happy with that then get your bank draft and run. If you have already made the offer it could be deemed inequitable to chase the remainder even if your e-mail requesting 1/2 in full satisfaction were deemed inadmissible in your favour. It is such a lot of money to lose, but I suppose 10k is an even bigger amount of money to lose. Again, sorry you both are going through this. I''m sure you know what they say about ''no good deed......''

I will have a t-shirt made for my husband with the highlighted part on it! I still can''t believe my husband did this. But I really can''t complain my husband usually makes great decisions when it comes to money and thankfully this 10k is really not going to hurt us.

Yes we have decided we could live without the 5k, we just want this to be done with. Plus I do have hope that this guy might end up feeling bad and pay it all, but I just don''t want to risk it or sit around waiting for it to happen.

 

[cara]

Is it accurate that you offered to lower his debt obligation to 5k? Cause the way its written in his email, it reads like he is trying to convince or weedle you into accepting those terms. I would be careful about replying to this - I wouldn''t want to imply that you are now happy to call 5k a gift and 5k a loan. You should say something like, ''we were under the impression that the entire 10k amount was a loan that would be repaid, and that you wiring us $9999 is consistent with this understanding. If you only have 5k now to repay us then that is better than nothing - please transfer it to us promptly in X manner - but we still expect to be fully repaid.'' Unless you really are OK with only getting half repayment! At this point, I think the western union is just a stall tactic. He already knows how to wire money (and how to unwire money) and is probably just stalling and weedling down his debt through your desperation. Frankly, I''d go to a lawyer or the police at this point. And I would remember that he has already shown himself to be pretty dishonorable in terms of believing anything he says to you.

While emails can be faked, they are better than nothing.

 

[lovegem]

Mia, I am sorry to hear that. That really stinks.

I don''t know how to small claims court works here. But I did help someone get their money back when I was in Canada. Basically the guy refused to pay my friend his wage. My friend at the end wrote his x-boss an email detailing the kind of work that he did and said it was what they were agreed on, etc. The point of the email was to get the x-boss to agreed that he did perform these tasks and yes, an amount was agreed upon, etc. But in the email, he didn''t mention that he was going to file a claim, because if the x-boss was aware of it, he may never reply to the email. So the point of the email is to get something in writing that "yes, we agreed on something and I was going to pay, but I changed my mind." Then you file a claim.

Good luck. I still can''t believe you have stinky friends like that.

 

[Steel]

How did things work out for you?

 

[ProseCuter]

Date: 8/5/2009 4:58:54 PM
Author: purrfectpear
Just so you''ll know, emails are not considered evidence of any kind.

That is absolutely NOT true. Emails are definitely evidence. Of course, depending on what they are being offered to prove, you will need to lay a foundation to get it admitted.

I prosecuted a case last year where a guy broke into someone''s Hotmail account, changed the password (preventing the original account holder from accessing it), and then sent out emails (pretending to be the original account holder), saying, "I''m a pervert and here''s the .jpg image of a citation for when I was picking up a prostitute, but don''t let that interfere with our business relationship." You better believe emails are evidence!

We had forensic computer experts and the custodian of records for Hotmail among our witnesses.

 

[purrfectpear]

Date: 8/8/2009 7:18:22 PM
Author: ProseCuter

Date: 8/5/2009 4:58:54 PM
Author: purrfectpear
Just so you''ll know, emails are not considered evidence of any kind.

That is absolutely NOT true. Emails are definitely evidence. Of course, depending on what they are being offered to prove, you will need to lay a foundation to get it admitted.

I prosecuted a case last year where a guy broke into someone''s Hotmail account, changed the password (preventing the original account holder from accessing it), and then sent out emails (pretending to be the original account holder), saying, ''I''m a pervert and here''s the .jpg image of a citation for when I was picking up a prostitute, but don''t let that interfere with our business relationship.'' You better believe emails are evidence!

We had forensic computer experts and the custodian of records for Hotmail among our witnesses.

Exactly. And how many thousands of dollars did the forensic experts cost you? Without PROOF that the emails were not spoofed...

You cannot just printout some emails and head off to court without being laughed out of court.

 

[ProseCuter]

I don't think Small Claims is going to want the level of proof needed in other courts. (My case was in Federal District Court for the Eastern District of California.) If I personally was going to Small Claims and had emails involved in my case, I would certainly bring them, though I would print them out with the entire header included.

To make a blanket statement that "emails are not evidence" is very misleading.

 

[mia1181]

Date: 8/8/2009 4:07:34 PM
Author: Steel
How did things work out for you?

Not good. As someone guessed above (maybe it was you?) he was totally stalling. He agreed to the 5k but then kept avoiding actually sending us the money. We eventually agreed to use Western Union and pay the fees, but then he responded with a nasty email about how DH "needs to be held accountable for what he has done" (being mean to him). And that he will pay back the 10k just not now. Then he threatened suicide and wrote us this email about how he is going to kill himself after he pays us back. It''s a total mess. So DH and I have decided to sit on it for a little while before we decide what to do. It''s honestly becoming such a hassle that we don''t even want to deal with it. And the 10k isn''t really going to hurt us. I just think this guy is crazy and I am just happy to have him out of our lives.

 

[neatfreak]

Date: 8/8/2009 8:08:02 PM
Author: purrfectpear

Date: 8/8/2009 7:18:22 PM

Author: ProseCuter

Date: 8/5/2009 4:58:54 PM

Author: purrfectpear

Just so you''ll know, emails are not considered evidence of any kind.

That is absolutely NOT true. Emails are definitely evidence. Of course, depending on what they are being offered to prove, you will need to lay a foundation to get it admitted.


I prosecuted a case last year where a guy broke into someone''s Hotmail account, changed the password (preventing the original account holder from accessing it), and then sent out emails (pretending to be the original account holder), saying, ''I''m a pervert and here''s the .jpg image of a citation for when I was picking up a prostitute, but don''t let that interfere with our business relationship.'' You better believe emails are evidence!


We had forensic computer experts and the custodian of records for Hotmail among our witnesses.

Exactly. And how many thousands of dollars did the forensic experts cost you? Without PROOF that the emails were not spoofed...

You cannot just printout some emails and head off to court without being laughed out of court.

Yes you absolutely can just print out emails without being laughed out of court if it is small claims court. In my many dealings with small claims court (I volunteered for a tenant advocacy group as a counselor) I not once heard of a judge rejecting emails in small claims.

Do they have to accept them? No. But do they most of the time? Yes.

Remember small claims is small beans and the rules of evidence do not apply.

 

[Richard Sherwood]

I tried court once and never did it again.

All the aggravation, yechhh...

I think it''s better to settle out of court, even if you take a loss. You might take a loss going legal, and maybe never even see a dime.

 

[Steel]

Date: 8/8/2009 9:30:37 PM
Author: mia1181

Date: 8/8/2009 4:07:34 PM
Author: Steel
How did things work out for you?

Not good. As someone guessed above (maybe it was you?) he was totally stalling. He agreed to the 5k but then kept avoiding actually sending us the money. We eventually agreed to use Western Union and pay the fees, but then he responded with a nasty email about how DH ''needs to be held accountable for what he has done'' (being mean to him). And that he will pay back the 10k just not now. Then he threatened suicide and wrote us this email about how he is going to kill himself after he pays us back. It''s a total mess. So DH and I have decided to sit on it for a little while before we decide what to do. It''s honestly becoming such a hassle that we don''t even want to deal with it. And the 10k isn''t really going to hurt us. I just think this guy is crazy and I am just happy to have him out of our lives.

I am sorry to hear this.

You mentioned you are able to let the money go, so if you want my 0.02 cents then I would try to 1) block his future contact and let it go or/and 2) go to a lawyer and sue his creepy a$$.

If you feel he is serious about self harming you could call a social health department in his area to let them know his state of mind; that way you can be confident both of you did ''all'' you could. Not that I would be quick to rush to the phone in your position...