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After being in the legal field for a few years, I am consulting other process servers, and starting a golf company. In the meantime I wish to convert my blog into a book so that women will know about this career.

Thursday, March 8, 2018

SMALL CLAIMS IS NOT YOUR FRIEND



      I mean this in the most sincere way, Small Claims court is not your friend if you do not understand how it really works. I still run into people who are frustrated and upset with small claims court because they did not feel justice was served, for one reason or another including small technicalities and frankly, because the proper legal procedure was not followed.

     Instead of writing an entire small claims legal course, I am going to list a few of the most common misunderstandings people make (not your fault as there are things the court just doesn't have time to tell you). No, I am not an attorney. My job as a process server, when serving small claims papers entitles me to take the initiative to make sure the legal papers you just filed are correct. 

    This is an article giving you advice and opinion based on my experience, some of it may be harsh but it is reality. Always consult an attorney for an actual course of action if you have concerns. Court clerks do not check if your paperwork is 100% correct, it's not their job and they do not give legal advice - it is up to us to figure it out.

Common Misunderstandings:
WRONG NAME FOR DEFENDANT: This kind of mistake mostly happens when you are suing a business. If you are suing Joe Smith Automotive because that was the name on your receipt, it is not necessarily his legal name that he has to be sued under. All the defendant has to do is show up for the court hearing, tell the Judge this legal paper does not have the correct legal name for the business, and the case can be dismissed, and some have been dismissed. This is because if you win your case and get a Judgment, then you want to file a lien or attach wages, your Judgment has to match the defendant's name exactly with any bank accounts, government agencies or employers. HINT: To find the legal name of any business or company, look at the bottom of their webpage. The web address might say www.joesmithautomotive.com but at the bottom of the web page it will say Joe Smith Automotive LLC., and this is the name you put on your legal papers. You can contact the Secretary of State to find out who is the Agent for Service. If there is no web search information, check with the County Recorder for a Fictitious Business Name Statement such as Joe Smith Automotive, or check with the CA Bureau of Automotive Repair or the State Contractors Board, (if the defendant is a contractor). If Joe Smith Automotive is not listed with the CA Bureau of Automotive Repair or any other governing agency, then you are probably safe suing Joe with the only name you have. If you are suing any contractor or automotive repair company and they have no license with the CA State Agencies they are supposed to, get a letter stating this from the Agency, take it to the hearing and you will probably win your case just because of that. So bottom line, before you sue a business make sure you have the actual legal name for the business or company. Here's as the trick: Before a client of mine wanted to sue a business, I needed to know the legal name of a business and his banking information so I could levy his bank account. I could not find this information anywhere. I went to the business, bought something from him and wrote a check, then from my bank I got a copy of the check after it cleared. The legal name and account number were on the back of the check where the business endorsed it.
LEVERAGE: I have seen people sue another because of emotion, not practicality. Take a moment and ask yourself if you are going to be effective in recovering your money. In other words, what in gods name makes you think, after serving a defendant, he/she is just going to show up in court and get his/her hand slapped with an order from the Judge to pay you? Ask any collection agency, they have hundreds of Judgments they cannot collect on. Do you know why? NO LEVERAGE. With collections agencies, it's a crapshoot. They figured if they keep harassing someone, they will pay. Not so much. A low life has ripped you off - they did not have car insurance when they hit you, or bounced a check on you or they failed to pay back rent - we get it, it's a bummer. But make sure before you go through all the court bureaucracy to get a hearing and then a Judgment, that the person you are suing has something to lose. If a loser has nothing to lose then the result is, you lose. For example, does the person you are suing own any property, or been at their job for a long time? Does this person have a successful business with employees and an actual commercial property address? Does this person have something that if you sue him, will affect some part of his life? Then you have leverage, because the person you are suing doesn't want a lien on his house, they don't want their wages attached, and he wouldn't want his business levied on. After reading this, if you still want to sue because you want "justice" and are still angry - and the loser you are suing has no job or any leverage - here's what you do. After you get your Judgment, get a certified copy of it from the small claims court clerk, take it to the County Recorder and for a few bucks you can put a lien on the Defendant. You are actually putting the lien on his/her name, because if this loser ever wins the lottery, he has to pay all his lien obligations first, and that's you. (Did you know the State of California checks you out before they fork over the lottery money to you?). If you owe the government any money or have liens on you, the lottery takes this money out of your winnings. So you might recover the money someday, but for now the lien will stay on file and if the loser ever tries to buy a house with an inheritance or something, the loser will have to pay you before escrow closes. I wrote an interesting legal case about LEVERAGE on my blog: www.legworkpi.com and this gives you insight on how important leverage is.
APPLICATION AND ORDER TO APPEAR FOR EXAMINATION: I have never seen this work. That doesn't mean it hasn't worked for some people if so, let me know as I've never seen it work. Any Plaintiff suing another, and has a Judgment for monies they want to collect but can't find anything the Defendant owns to levy, or you can't figure out where they work or pretty much anything else, you can serve this Application and Order on the Defendant, (more court and process serving fees). This makes the Defendant show up and under oath, has to answer all your questions about his property, finances and other assets. Please remember this is an informal hearing, don't expect the Judge to fight for you so you can "finally get justice." A Judge can't make the Defendant tell the truth. If the Defendant says he doesn't have a bank account, he doesn't have to prove he doesn't. If the Defendant says he doesn't have a job, he doesn't have to prove he doesn't. He doesn't have to prove anything. If he had the money to pay you in the first place, you wouldn't need to do this. You are better off doing your own research into the Defendant's property and assets so you can attach wages or a lien etc. www.courts.ca.gov/documents/ej125.
SHERIFF'S DEPARTMENT - SERVING PAPERS FOR YOU: Most Sheriff's Civil Divisions in CA will serve your legal papers for you, for a small fee. What you need to know is, it is not an actual Sheriff in a uniform using a Sheriff's vehicle serving your papers. They are process servers in plain clothes, just like any other process server. They only work from 8 AM to 5 PM and are employees of the Sheriff's Department. They do not work nights or weekends and do not guarantee your papers will be served. If the Sheriff's Civil Division does not serve your papers in time for your hearing, you have to start all over again. It is better to hire a private process server who can work nights and weekends, and get the legal papers served on time for you. The Sheriff's Department should be used if you need to do a bank levy, earnings withholding order, vehicle levy or business seizures. Check out the Civil Division, Service of Process at www.sacsheriff.com.
So these are the most important things to know especially regarding LEVERAGE. Remember, we must also keep emotion out of any small claims case. Judges only follow laws governing small claims, they cannot help you get punitive damages to handle any emotional distress. That is another courts jurisdiction.




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