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on't let someone get away with fraud just because they know how to use the criminal justice system against you.  Take them to court.  The Small Claims Court  System is a  simple  process that can  be utilized by anyone for a minimal fee without an attorney.

  Once you, the victim, have been successful in Small Claims Court, the defendant is legally bound to pay you the amount awarded, which includes court costs.  Even if they don't want to pay, there are procedures in place that allow you to have their property seized or to garnish their paycheck or checking account.  Even if you can't find them, there are procedures for suing them.  You can even obtain a subpoena that enables you to secure copies of their phone bills, checking account statements, vehicle ownership records, etc.  In other words, the system is already in place for you to........... 

                                  
                                  
Get Even Legally

The only thing necessary for the triumph of evil is for good men
to do nothing...
Edmund Burke, 18th Century British statesman
                                

         

WHY BOTHER?

                                              

     
If you were defrauded by a thief who used a close relationship to obtain money from you and then disappeared without a trace, you can find justice in small claims court.  If the prosecutor told you your close relationship with the thief made it too difficult for the system to prosecute, you can find justice in small claims court. You do not have to be a victim.  The system is already in place for you to use the law to punish the thief, collect your money and turn your victim status into victor.  


     First, the judgment can be put on the defendant's credit report so that future employers and lenders will be forewarned.  They might even call you.


     Second, you can record the judgment in the county where you obtained it so that the defendant cannot secure a real estate loan or sell a home without paying you off first.

     Third
, you can have the defendant's wages garnisheed and bank account levied.

     
     Fourth
, you can have the defendant's personal property seized.

     
    
Fifth, you can put the
thief in the CUFF database so that others can help you find them.  Often this kind of person has defrauded people before you and will defraud people after you.  It is possible to demonstrate a pattern of criminal behavior that can persuade a prosecutor to charge a person like this who otherwise would remain free.  You will never know about these other victims unless you use the system to make it possible for you to go after the thief.  


    Read the instructions below to find out how you can sue in small claims court and collect your money from the defendant once you have obtained a judgment.  Even if you can't find the defendant right now, the interest on your judgment will continue to accrue.  When you do find them, they will have to pay this interest as well as the full judgment and court costs.


    But one thing is for certain...if you don't sue them, they will never have to pay you anything and you will never have the opportunity to regain your losses or to show the defendant that the system will penalize those who practice fraud.


    Don't get discouraged.  We will help you.  Here's how:
  How We Help Victims.

                                                              
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General Steps Involved in the Small Claims Court Process

The following steps are typical for the Small Claims Court process, though some of the steps may vary from state to state.  Call or visit your nearest Small Claims Court to find out which steps are different.  Many courts have instructional brochures to help walk you through the procedures and many also have Web sites with on-line information and even electronic form filing.  

HOW TO SUE IN SMALL CLAIMS COURT
(
Typical monetary limit is $2,500 to $10,000.) 


(1)
File a Complaint against the defendant at the Small Claims Court, which is the small claims division of the Justice Court.  Cost - approx. $15.00.  Small claims courts typically handle cases involving money debts, personal injury, property damage and cancellation of contracts.  Although most states limit damage charges to between $1,000 and $5,000, there are a few states that extend the limit to $10,000 and even $15,000.

(2) Serve defendant with the Complaint/Summons by process server or certified mail.  Certified mail is less expensive and will suffice if the defendant does not refuse receipt. Cost for process server - approx. $35.00 - $55.00.

(3) The defendant has 20 days to respond.  The court will send you a copy of the response.  If the defendant does not respond within 20 days, you may file an Affidavit of Default with the court.  An Affidavit of Default notifies the defendant that they have failed to respond as summoned.  The defendant is given 10 working days to submit an answer.  After the 11th judicial day following entry of default, the default may be entered.

(4) If the defendant does respond, a trial will be set, usually within 60 days after the Answer has been filed with the court by the defendant.  

(5) Just to make sure, confirm the court date and time with the court 24 hours before your trial.

(6) A judgment rendered by the judge will be given at the end of the court hearing or will be sent to both the plaintiff and the defendant, usually within 10 days.  If you win, you will be awarded the amount PLUS all court costs. 

(7)  Attorneys cannot represent either party in Small Claims Court and the decision of the judge or Hearing Officer is final.  However, before the hearing begins, the law gives the defendant the option of transferring the case to Civil Court where an attorney may be employed by either party. 


                                          
                            BEWARE!

*Beware of the statute of limitations on civil suits.  Check with your state statutes to find out what they are.  They could be shorter than you think.  For example, verbal contract disputes must usually be filed within two years of the breach.  Written contract disputes must usually be filed within three years of the breach.   

*Beware of filing a civil law suit in Municipal or Superior Court after you have already won a Small Claims Court judgment for the same incident.  If you thought you'd collect some of your money in Small Claims, then later hire an attorney when you could afford it and sue for the remainder, you may lose your chance to collect the greater portion of the losses.  This is because the court may determine that you "have already had your day in court" even if you have an iron-clad case.


                                                            
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HOW TO SERVE A DEFENDANT WHOSE 
WHEREABOUTS ARE UNKNOWN


(1)
  Send a certified letter to the defendant's last known address.

(2)  When the certified letter is returned unclaimed, send a process server to the last known address.  The process server will provide in writing verification of attempt to serve.

(3) You must have some verifiable documents to show the court that this is indeed the defendant's last known address.  Examples are: form letters from banks, insurance companies, etc. with the defendant's address and a recent date; driver's license with this address (employers may have a copy); payroll stubs with the address and recent date; bills with the address and recent date.

(4) File a request to serve by Alternative Method with the Small Claims Court and provide the above documentation to justify why you must do this.

(5) When the court grants this motion, publish the notice in the legal notices publication that services the town where the defendant last lived. Click here for a sample of how to write the notice.  Cost ranges from $75.00 to $300.00 depending on the publication. This amount is part of the court costs and will be awarded to you as part of the judgment.

(6) Typically, this notice must be published one day of each week for four consecutive weeks.  After this is completed, the publication will send you an official receipt stating that your notice has been published for the specified time. The defendant has another 30 days (typically) to respond to the court before you can go back to court with your proof of service.

(7)  When the appropriate time has lapsed, take your proof of service to court and file an Affidavit of Default.

(8) The court will take typically a week to 10 days to award you your default judgment. 

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 HOW TO COLLECT YOUR JUDGMENT
 FROM THE DEFENDANT


(1)
Judgment Debtor Exam:  

This is an order sent to the party owing the money to appear in court with a list of assets.  This order can be requested by the plaintiff at the court by completing the required form and then having it delivered by a process server to the defendant.  A small fee may be required.  Both parties will appear at court on the date and time assigned by the court. The will meet with a judge or mediator who will determine the assets available for payment of the debt.  This is a solution only where the debtor feels an obligation to pay the debt in order to eliminate any potential damage to his credit.  If the debtor does not appear for the hearing, a bench warrant for contempt of court can be issued by the court as long as the debtor was personally served to appear.

(2) Writ of Execution: 

This is a procedure that allows the constable or sheriff to seize non-exempt property belonging to the defendant.  Often states have a set amount that will be returned to the defendant once the assets are sold.  A typical amount is $1500.  So, if you have a judgment for $2800 ($2500 + court costs), the defendant must have at least $4300 in assets to satisfy the judgment.  Cost- approx. $35.00 for the constable to serve the papers plus $1.50 per mile.  The typical filing fee for a Writ of Execution is $20.00.

These costs can be included as court costs and will be added to your judgment.  Depending on the court, you may or may not need to be specific in describing the assets to be seized.  If you know the party, you will probably know what kind of valuable personal property they may own.  If you do not know them personally, you may have to indicate what you would expect they would own: furniture, tv, computer, stereo, recreational equipment, automobile, or, depending on the court,  you may be able to leave it open-ended.   

(3) Writ of Garnishment:  

You may garnishee a defendant's non-earnings or earnings (generally speaking, non-earnings means their bank account and earnings means their wages or salary) by completing forms in a garnishment package that the Small Claims Court will provide you.  Both of these procedures require filing the appropriate forms with the Small Claims Court, then having them served by a processor on a bank or employer.  

There are two steps involved: 

(1) First, complete the garnishment forms and file an Application for Writ of Garnishment.  Complete these forms and give them to the court for the judge to review.  When the Writ page of the Summons and Writ of Garnishment is signed by the judge, you have them served on the bank or employer with all appropriate forms detailed in the garnishment instructions.  The garnishee (the bank or employer) will be required to respond to the court within a set time period (typically, 10 days).   This allows the garnishee to advise the court of any problems they will have fulfilling the garnishment, i.e., the bank account may have recently been closed; the employee was fired and has no wages due, etc. 

 You will receive a copy of the garnishee's answer also, so you will be aware of any potential problems.  If the garnishee is an employer, you will be required to send the defendant a copy of the Writ of Garnishment along with additional forms within three working days after serving them on the employer.
 
(2) This second step begins after the garnishee's answer is received.   If the bank or employer is able to comply with the garnishment, you will complete the forms requesting that the garnishment be initiated.   If the garnishee is a bank, one copy of these forms will have to be sent to the defendant.  When the court signs these forms, the bank will be required to give you the designated funds from the defendant's account.  Ask the clerk at the Small Claims Court for a Writ of Garnishment package.  Typical cost for filing a Writ of Garnishment - $20.00 plus process service.

(4) Judgment Lien:  

(A) Real Property (Real Estate):  

The requirements in states vary.  Generally, if you file your judgment with the county recorder's office in the county where the defendant owns property, you will be able to collect your money when the property is sold.  This is because when the defendant sells the property, if a loan is involved or if there is no loan but the buyer is prudent, a title search will be performed on the property by a title company or escrow attorney.  The search will include a search of the seller's name as well as the actual property.  Your judgment will appear in this search and the buyer or lender will almost always require that it be satisfied prior to closing.  Make sure that your address on this judgment is always up-to-date.   Typical cost for recording documents - $10.00 plus minimal costs for each additional page.
  

(B) Personal Property:  

The requirements in states vary widely.  In some states, you may be able to place a lien against the defendant's vehicle by filing papers with the Department of Motor Vehicles.  They will require that you provide a certified copy of your judgment with the judge's signature along with their specific form for placing liens.  

If your judgment specifically stipulates that your name should be placed on the title as a lien holder, they will reissue the title, give you a copy and send a new copy to the defendant.  So, make sure you want the defendant to know that you know where he or she is now residing.  Otherwise, they may disappear again. 

However, if your judgment states only that you are to be paid the amount awarded with no specific instructions as to liens, etc., you may still be able to place a lien on the vehicle.  The Department of Motor Vehicles in some states will put your lien on record but will not necessarily give you a copy or send a new lien to the defendant.  However, when the defendant tries to sell the vehicle, your lien will appear and the buyer cannot purchase the vehicle unless your judgment is paid off.   

Some states will allow you to place a lien against the defendant's driver's license or state ID.  They will not be able to renew their license or get a new license in another state until the judgment is satisfied.  If they try to get a new ID or license by claiming they haven't had a license for years, the Motor Vehicles Department will do a national driver's search on their name to see if there any outstanding issues - such as your judgment. 

Costs vary from state to state but generally are less than $20.00.

(5) Out of State Defendants:  

If the defendant has moved out of state, procedures 2, 3 & 4 are still options for collection.  However, for Numbers 2 & 3, you will need to transfer the Small Claims Court judgment to Superior Court in the county where the judgment was rendered: Cost - Approx. $20. Then, you will transfer it to the Superior Court in the state where the defendant is living.  This is called a Transfer of Foreign Judgment.  You must do this because each state requires that judgments meet their specific requirements before the sheriff or constable can serve the Writ.  Unfortunately, some states will not allow you to complete the Foreign Judgment paperwork yourself.  They will require that you use an attorney from their state to do this.  Cost for an attorney can range from $250 to $750.   

      Additional costs may be:

(1) Copies of your Superior Court judgment from the county where you received the judgment, approx. $17.00 - $55.00 depending on whether the state you are transferring to requires a Certified Copy (1 official stamp) or an Authenticated Copy (3 official stamps);

(2) Filing fee for the Foreign Judgment in the state you are transferring it to - approx. $50-$100;

(3) Process service for serving the notice of transfer on the defendant if their address is known or 

(4) If their address is unknown, publication costs in the local legal publication, approx. $70 - $300.  NOTE: This publication procedure also requires at least one month of notices and a time period for response from the defendant. 

(5) Cost for the sheriff to deliver the Writ of Execution, approx. $25 - $35, and usually minimal mileage charges.  If you have to hire an attorney, he will handle notification of the sheriff or constable.  If you are able to file the paperwork yourself, then you will have to send the Writ of Execution to the sheriff  or constable yourself.  A constable or sheriff can act only on judgments from the county where he officiates.
  

Call the Superior Court in the county where you intend to file the Foreign Judgment and request copies of the appropriate forms.  If the Clerk advises you that you have to go through an attorney in that state, then check the bar association website for that state and find a competent attorney who understands the process and has reasonable fees.  Remember, all the attorney will be doing is filing forms - not developing an attack strategy for winning your case.  You have already done that yourself.   Note that some contiguous states have reciprocity agreements for Superior Court judgments.  Ask if this is the case when requesting the forms.  

(6) Record the Judgment: 

It is advisable to record the judgment with the county recorder where you received the Small Claims Court judgment.  Cost - approx. $11.00.  A judgment will remain public record, typically for five years, and is renewable.  In addition to the advantage of a title search as described in #4, a certified copy of the recorded judgment can be taken to a credit reporting agency to be added to the defendant's record.   Your judgment will be available for review by every potential creditor or employer.  In order to clear up the credit record, the defendant may be required by a creditor to pay off your judgment.  Or, it may become clear to the defendant that it must be paid off in order to obtain a good job.

Because a thorough title search should include a search of court records in the county where real estate is being transferred, it is possible that your judgment may be discovered even if you don't record it.  We know of cases where judgment debtors who were refinancing their homes were required by the mortgage company to pay off a  judgment prior to closing and these judgments were not recorded with the county.  However, by recording it, you provide additional insurance that the judgment will turn up in a title search.

(7)
Subpoena Powers: 

These are the powers that allow you to snoop legally into someone's personal information in order to locate assets or find the defendant so you can have his property seized by the sheriff or garnish his wages or bank account.  It's not just the detectives on Law and Order who can do this.  If you have a Small Claims Court judgment, you can do it, too. 

First, obtain your judgment.  Then obtain the form for a Civil Subpoena from the Small Claims Court.  Complete it and return it to the court with a copy of your judgment so the judge can quickly reference your case. 

You may be asked to present it in front of a judge or you may be asked to leave it with the court.  If you leave it, the judge will review it within a few days and return it to the court clerk.  The form will probably contain a section that requires you to name a processor server who will serve the subpoena on the party, company, bank, etc. from whom you are subpoenaing information.  In some cases, the court clerk will put the subpoena in the box of your processor server at the court after the judge signs it.  Ask the court clerk what their policy is.  

The subpoena must be served on the named party by someone not connected with the suit.  It does not have to be a process server but it does have to be signed and notarized by someone over 18 years of age.  

JOHN DOE LAW SUITS HELP IDENTIFY UNKNOWN INTERNET FRAUDSTERS

If you do not know the true identity of the person who defrauded you, you may be able to file a civil suit in your county using a John Doe for the defendant's name.  You would need to provide all the e-mails, letters, wire transfers, etc. that show you do not know the identity or location of the defendant but that you have a clear basis for your civil claims.  Your purpose is not to file for a monetary judgment initially but to obtain a subpoena for the ISP and e-mail providers of the unknown fraudster in order to obtain the person's name and address so that you can file a civil suit. 

It is also possible to subpoena eBay and PayPal for information they have on the person's true identity if the fraudster used their services in the fraudulent transaction. This is the legal process used to obtain the identities of the unknown defendants in the music download trials and by large corporations such as Microsoft to sue Web site owners for spam.  These lawsuits were filed in Federal District Court and it is probable that your small clams court and county courts will tell you to go to Federal District Court to file your case.     


Here are some links to information on John Doe suits: 

http://www.ceas.cc/papers-2005/174.pdf
     http://digitalmusic.weblogsinc.com/2006/08/07/the-riaa-vs-john-doe-a-laypersons-guide-to-filesharing-lawsui/

http://www.ciol.com/content/search/showarticle1.asp?artid=82361

 

   
  HOW TO FILL OUT THE SUBPOENA FORM
 TO REQUEST DOCUMENTS

   (1)  Check the "Duces Tecum" box which refers to documents to be
          submitted. 

   (2)  In the Duces Tecum section, the wording will be something like: 
         YOU ARE ORDERED TO SUBMIT TO THE COURT NAMED
         ABOVE THE FOLLOWING DOCUMENTS  BY THE DATE AND
         TIME STATED BELOW. 

   (3)  In the Date and Time boxes, allow at least 10 days to 2 weeks for the
         party being served to research the required documents.  

Once you receive the right to subpoena documents, have the subpoena served as explained above on the company or individual named.  If it is a company, it is advisable to find out from the legal department or an knowledgeable employee what the company policy is for receiving subpoenas.  For example, cell phone bills for a national company may have local agents who may be served.  And by the way, just to let you know that the law is on your side: if the recipient of a subpoena fails to produce documents, a warrant may be issued for their arrest.  Cost - approximately $35.00 for filing the request with the court or free if served by a friend unconnected with the case. 


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Sample Summons by Publication:  
No. (Case Number)
 SUMMONS

IN THE (Name of Court, e.g., NORTHEAST SEATTLE COURT OF THE STATE OF WASHINGTON IN THE COUNTY OF KING)
(Name of Defendant):
(Last Known Street, Unit #, City, State, Zip Address of Defendant in the county where the summons is being published.):

YOU ARE HEREBY SUMMONED and required to appear and defend within the time applicable in this action in this Court.  The allotted time for you to appear in service by publication, which was granted the Plaintiff by this Court on (date) by Judge (Name), is 30 days after the service of the Summons and Complaint upon you is complete, exclusive of the day of service.  Service by Publication is complete 30 days after the date of the first publication.  The date of the first publication of service in this action is (first day of publication).   The final date is (last day of publication).
YOU ARE HEREBY NOTIFIED THAT if you do not appear and defend, you run the risk of having an appropriate judgment entered against you.
YOU ARE HEREBY NOTIFIED THAT a copy of the Summons and Complaint may be obtained from the Clerk of the Court of the (name and address of court, e.g., Northeast Seattle Court, 3456 S. 8th Street, Seattle, WA 98168.
YOU ARE CAUTIONED that in order to appear and defend you must file an Answer in writing to the Clerk of this Court, accompanied by the necessary filing fees within the time required, and you are required to serve a copy of any Answer or response upon Plaintiff.  The name and address of the Plaintiff is (your name and full address).
SIGNED AND SEALED this (date approved by the court). (Name of Court Clerk - if illegible, write the word "Illegible".) (Name of Court) COURT SEAL

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DISCLAIMER

This page is provided as a public service only.  We are not attorneys and no legal advice is being offered or inferred.  No information presented here will enable a plaintiff to win a case.  The success of a case depends on the quality and presentation of the information.  We recommended that you seek the advice of a competent, qualified attorney if you do not feel comfortable presenting your own case.  Although an attorney cannot represent you in Small Claims Court,  he or she can offer advice on the merits of your case and how to present it.  The information provided on this page is instructional only and is presented for the sole purpose of advising citizens of the rights available to them in the Small Claims Court System and outlining the general steps involved in completing the forms for the court application and collection process.  This information is available to the public at Small Claims Courts across the nation in the form of brochures, pamphlets or general information provided by clerks. It is also available online on the Web sites of many municipalities.

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