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InvisibleStonehenge
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Re: Question about small-claims court [Re: luvdemshrooms]
    #13576602 - 12/03/10 11:07 AM (13 years, 1 month ago)

Seuss, why are you so sure she will win? Based on what evidence? If the aunt admits it, then yes. But the chances of that are slim and having paid some money does not prove more was owed or how much. The aunt could say the debt was 1500 and it was paid in full. How is the other sister going to prove otherwise? You and some others seem to think the judge will decide she is lying and make an award without facts to back it up. That is extremely rare. Then there is the difficulty of collecting.

Family members can make up and sometimes do. Dragging them in to court could make a reconciliation less likely.


--------------------
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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Invisiblejohnm214
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Re: Question about small-claims court [Re: Seuss]
    #13576609 - 12/03/10 11:10 AM (13 years, 1 month ago)

Quote:

Seuss said:


> All it will likely do is piss off the aunt so she never pays.

Would that not be contempt of court?





legally, this would only be possible if the judge orders payment, and the aunt has the means to satisfy the judgment yet refuses.

You can't hold someone in contempt for not satisfying an order they have no means to satisfy- i.e. if she's a bum and has no money, it can't be done.

That said, judges break the law on contempt (especially ruling things civil contempt that they have no power to rule on- things that should be criminal matters) all the time and basically seem either ignorant or unconcerned of th law in many small courts.


The way it usually works is the state has some allowance of income/wealth that the debtor is allowed to keep for personal wellfare, along with their house, car, whatnot (unless such is collateral).  Above that, you can attach payments and proprety.

If your doing this yourself, the expense is not that much, but you still need to have something to seize- i.e. the aunt must have some income or wealth.

You can use the court's process to force her to disclose such if you get judgment.


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OfflineSeussA
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Re: Question about small-claims court [Re: Stonehenge]
    #13577223 - 12/03/10 01:46 PM (13 years, 1 month ago)

> Seuss, why are you so sure she will win? Based on what evidence?

I'm not certain she would win, as I am not omnipotent, contrary to popular belief; however, based upon what I have seen of small claims court, the judges are very savvy, and have seen a lot of this type of BS.  Because lawyers are barred, small claims works much more on common sense than the minutiae of a missing dot from an i or a missing cross from a t.  Money was given from one person to another.  The question becomes was this a gift, or was this a loan.  I cannot see any other option than these two.  If it was a gift, then why was half of it paid back?  Was only half of it a gift?  Half of it being a gift, with the full amount be given at once, doesn't make any sense.  To me, this is a pretty simple case.  Had none of the money been paid back, I wouldn't be as certain towards an outcome.  Had the money been given at half the amount, twice, then I wouldn't be as certain (as the first time could have been a loan and the second time could have been a gift).  That half of the given money was returned leads me to believe that it was not a gift and that the receiver knew that it was not a gift.  If I'm convinced of this, then I suspect a judge that sees a lot more of this kind of crap than I do is also going to be convinced.  (My opinion could change if I misread the facts or if the facts were misrepresented.)

> but you still need to have something to seize- i.e. the aunt must have some income or wealth.

I know where I live, which is not the US, a person that is owed money can get a lien placed on personal property such as a house or a car.  Once in place, the property cannot be sold or transferred.  Not the same as a seizure, I know.


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Invisiblejohnm214
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Re: Question about small-claims court [Re: Seuss]
    #13577376 - 12/03/10 02:17 PM (13 years, 1 month ago)

Oh, yeah you can do that everywhere in the US to the best of my knowledge.  The exemptions for homes and cars, generally apply only to seizure for a reasonably priced home and car.  You can still attach whatever you want, just can't execute on it unless the person sells it.

I agree with Seuss that this is not a hard case.  The big help will be the woman herself (aunt).  Call her as the first witness and grill her.  If she denies it was a loan, she'll have a hard time looking honest and coherent.

People think of this stuff in the abstract too much.  Especially on the criminal matters on this board.  When you are questioned by the cops, or on the stand, if you give up things, it doesn't matter what lack of evidence exists.  (look at the number of false convictions based on no physical evidence and 'confessions' of people when questioned by the cops, unrecorded of course except for the last five minutes where the guy admits it).

This isn't a capital case here- you only need to convince the judge its more likely than not that the loan existed.  If the woman lies about it, there's plenty of crap to hit her with that will get her to admit the truth, start backpedling, or come off as a liar.


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InvisibleStonehenge
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Re: Question about small-claims court [Re: Seuss]
    #13578097 - 12/03/10 04:37 PM (13 years, 1 month ago)

Seuss, you are dead wrong. Stick to things you know about.

>Because lawyers are barred

Few if any courts bar lawyers. I won't say none exist but you have been watching too much judge judy.

>Money was given from one person to another

There is apparently no proof of this fact.

>If it was a gift, then why was half of it paid back?

No proof of any money given or that the payment was to repay. The aunt could say the other sister owes her the 1500, that it was a loan.

>then I suspect...

Seuss, this is not another of our theoretical discussions. The decision here could mean a lifetime emnity or a peaceful resolution without judicial process. If there was a strong possibility of winning and collecting then maybe it's worth alienating a close relative, maybe. All i can see coming from this is bad feelings. You go ahead and have the last word. As usual.


--------------------
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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Offlinec1dh3d
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Re: Question about small-claims court [Re: Stonehenge]
    #13578153 - 12/03/10 04:51 PM (13 years, 1 month ago)

Given the current relationship status with said aunt, with anyone in the family, is piss poor at very best. Noone is looking to spare relationships or feelings during this debt collection process - it has gone beyond sparing feelings at this point.


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Invisiblejohnm214
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Re: Question about small-claims court [Re: Stonehenge]
    #13578234 - 12/03/10 05:22 PM (13 years, 1 month ago)

Quote:

Stonehenge said:
Seuss, you are dead wrong. Stick to things you know about.

>Because lawyers are barred

Few if any courts bar lawyers. I won't say none exist but you have been watching too much judge judy.





California Civil Code  116.530. 

(a) Except as permitted by this section, no attorney may
take part in the conduct or defense of a small claims action.

  (b) Subdivision (a) does not apply if the attorney is appearing to
maintain or defend an action in any of the following capacities:
  (1) By or against himself or herself.
  (2) By or against a partnership in which he or she is a general
partner and in which all the partners are attorneys.
  (3) By or against a professional corporation of which he or she is
an officer or director and of which all other officers and directors
are attorneys.
  (c) Nothing in this section shall prevent an attorney from doing
any of the following:
  (1) Providing advice to a party to a small claims action, either
before or after the commencement of the action.
  (2) Testifying to facts of which he or she has personal knowledge
and about which he or she is competent to testify.
  (3) Representing a party in an appeal to the superior court.
  (4) Representing a party in connection with the enforcement of a
judgment.

Quote:


>Money was given from one person to another

There is apparently no proof of this fact.




Likely some instrument conveying payment exists, that can be produced.  Further, the documents showing the admission of the Aunt to the loan and the extant debt also speak to the existance of a loan.  Finally, the aunt, the mother, and everyone else with knowledge can establish this fact.

Quote:

>If it was a gift, then why was half of it paid back?

No proof of any money given or that the payment was to repay. The aunt could say the other sister owes her the 1500, that it was a loan.




She could say anything, it doesn't matter.  That's not what she's said in the past, and that's not what the evidence shows.

Quote:

>then I suspect...

Seuss, this is not another of our theoretical discussions. The decision here could mean a lifetime emnity or a peaceful resolution without judicial process. If there was a strong possibility of winning and collecting then maybe it's worth alienating a close relative, maybe. All i can see coming from this is bad feelings.




Nobody said anything about family harmony.

If the original poster wanted help with this I'm sure he would have asked.  Given none of us know anything about the situation and it wasn't asked, speculation about this is both off topic and somewhat presumptious.  Its none of our buisness.


Quote:

You go ahead and have the last word. As usual.




:whatever:


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OfflineSeussA
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Re: Question about small-claims court [Re: Stonehenge]
    #13580714 - 12/04/10 07:58 AM (13 years, 1 month ago)

Quote:

Stonehenge said:
Seuss, you are dead wrong. Stick to things you know about.

>Because lawyers are barred

Few if any courts bar lawyers. I won't say none exist but you have been watching too much judge judy.





I don't have a TV, thus I don't watch "judge judy".  Sorry to disappoint.

However, you are correct that I spoke too strongly when I stated "lawyers are barred from small claims court".  I was basing this assertion off of my own experiences.  I should have realized that this rule is not ubiquitous.  Of course, you made the same mistake, by stating "few if any courts bar lawyers".  All small claims courts in California, Michigan, and Nebraska bar lawyers from representing others in small claims courts.  This is certainly more than a "few, if any".

Source: http://www.nolo.com/legal-encyclopedia/faqEditorial-29071-10.html
Quote:

Can I bring a lawyer to small claims court?

In a handful of states, including California, Michigan, and Nebraska, you must appear in small claims court on your own. In most states, however, you can be represented by a lawyer if you like. But even where it's allowed, hiring a lawyer is rarely cost efficient. Most lawyers charge too much compared to the relatively modest amounts of money involved in small claims disputes. Happily, several studies show that people who represent themselves in small claims cases usually do just as well as those who have a lawyer.




Quote:

Stonehenge said:
The decision here could mean a lifetime emnity or a peaceful resolution without judicial process.




Based upon everything the OP has stated, I don't think this is an issue.  Regardless, he was asking for about legal issues not for family therapy.  Perhaps you should stop watching so much Dr. Phil (swing... ad hominem is back in your court.)


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InvisibleStonehenge
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Re: Question about small-claims court [Re: Seuss]
    #13580768 - 12/04/10 08:38 AM (13 years, 1 month ago)

OK, i accept the fact you now realize lawyers are not generally barred from courts even small claims. And only 4 out of 50 states plus several districts and protectorates is indeed a "few" not the majority at all.

Family members often have tiffs and say some words. Pushing them to pursue legal means when its very unclear how they would win the case let alone collect might not be the best thing. The op has to decide but i think anyone would feel offended at being sued and if they won, they would consider the debt canceled. Left on their own they may reconcile. Many attorneys will give a free consultation and would probably advise against the suit.

I don't watch tv either.


--------------------
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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OfflineSeussA
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Re: Question about small-claims court [Re: Stonehenge]
    #13582090 - 12/04/10 03:36 PM (13 years, 1 month ago)

> And only 4 out of 50 states plus several districts and protectorates is indeed a "few" not the majority at all.

Well, I wouldn't want to split hairs, but I will, since I must get the last word in... -grin- you did say "few, if any" and not "majority".

> OK, i accept the fact you now realize lawyers are not generally barred from courts

Again, I'm splitting hairs, since that is what I do... I said 'small claims court' and not 'courts' (in general).  I'm happy you were able to understand my explanation of the error I made.  It is unfortunate that you were unable to see your own error.  Oh well, c'est la vie.


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InvisibleStonehenge
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Re: Question about small-claims court [Re: Seuss]
    #13582557 - 12/04/10 05:29 PM (13 years, 1 month ago)

"Few if any" indicates not only less than a majority but a relatively small amount. Since we have 50 states, a district and several protectorates, 4 out of perhaps 55 is a relatively small amount. The majority do not ban lawyers. You should have been one, you love to argue. I should talk, lol.

It's just that telling someone to take a relative to court can have unintended consequences. Our little discussion pales in relation to that. You wouldn't want to hear later that one set fire to the other's home or would never speak to them again, or worse.


--------------------
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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Invisiblejohnm214
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Re: Question about small-claims court [Re: Stonehenge]
    #13583038 - 12/04/10 07:14 PM (13 years, 1 month ago)

Quote:

Stonehenge said:
"Few if any" indicates not only less than a majority but a relatively small amount. Since we have 50 states, a district and several protectorates, 4 out of perhaps 55 is a relatively small amount.




Who said it was 4 out of 55?  As far as I can tell, you've just presumed this for the sake of a convenient fallback position despite the want of evidence to support this.  This is a fallacy: the source Seuss cited stated three examples of state's barring lawyers from small claims courts, it did not stand for your proposition that these are the only states barring or otherwise restricting an attorney's practice in the small claims court, nor does it establish your contrary position that "few if any" bar lawyers.

Beyond the deficiencies of your uncited claim, there are certainly more restrictions on a lawyer's appearance in small claims than the three states Seuss's source cited explicitly.

As an example, in some states with small claims courts, lawyers are only allowed by leave of court See:  Oregon Revised Statutes 46.415(4); Revised Code of Washington 12.40.080(1)

How many more are there?  I don't know, and you've certainly not cited your rather doubtful claim- as a matter of fact, I believe you've never cited any of the legal claims you've made in this forum, ever.

Quote:

It's just that telling someone to take a relative to court can have unintended consequences. Our little discussion pales in relation to that. You wouldn't want to hear later that one set fire to the other's home or would never speak to them again, or worse.




And who exactly did this?  Nobody that I can see.  Nobody here knows enough to advise the original poster as to his family situation, and more importantly; if the original poster wanted commentary on this matter he would have asked.  It certainly doesn't seem the province of this forum's posters to misrepresent the law so as to force the original poster's hand because we know better than him what his mother should do- even if he asked, which he certainly did not.


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Anonymous #2

Re: Question about small-claims court [Re: johnm214]
    #13587802 - 12/05/10 09:28 PM (13 years, 1 month ago)

OP, ignore this thread. Statute of frauds, research it for your state. Basically large ($500) transactions need to be in writing. I would check the specifics where you live, but it may well kill the whole deal.


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Re: Question about small-claims court [Re: Anonymous #2]
    #13588606 - 12/06/10 01:20 AM (13 years, 1 month ago)

The fact that she made a payment, and you have proof of it, is all that is needed. She can't say it was a gift if she made a payment towards it.


--------------------
In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists & will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals so that security and liberty may prosper together.

-former President & 5 Star General, Dwight D Eisenhower's farewell address to the Nation


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Anonymous #2

Re: Question about small-claims court [Re: Stillmatic9142]
    #13589624 - 12/06/10 09:52 AM (13 years, 1 month ago)

Quote:

Stillmatic9142 said:
The fact that she made a payment, and you have proof of it, is all that is needed. She can't say it was a gift if she made a payment towards it.



It isn't whether it was a gift or not, it's that the statute of frauds prevents you from enforcing large dollar-value oral agreements.


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InvisibleStillmatic9142
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Re: Question about small-claims court [Re: Anonymous #2]
    #13589744 - 12/06/10 10:18 AM (13 years, 1 month ago)

Quote:

Anonymous said:
Quote:

Stillmatic9142 said:
The fact that she made a payment, and you have proof of it, is all that is needed. She can't say it was a gift if she made a payment towards it.



It isn't whether it was a gift or not, it's that the statute of frauds prevents you from enforcing large dollar-value oral agreements.





Since small claims court goes up to 5,000 I'm sure it won't be a problem. Small claims courts are usually a little more lenient. If you have a check, signed, from the other party saying here is some money towards the 1500 then you're golden. End of story.


--------------------
In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists & will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals so that security and liberty may prosper together.

-former President & 5 Star General, Dwight D Eisenhower's farewell address to the Nation


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Invisiblejohnm214
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Re: Question about small-claims court [Re: Anonymous #2]
    #13593825 - 12/06/10 11:34 PM (13 years, 1 month ago)

Quote:

Anonymous said:
OP, ignore this thread. Statute of frauds, research it for your state. Basically large ($500) transactions need to be in writing. I would check the specifics where you live, but it may well kill the whole deal.




Whatever dude.  You don't know what state that is, nor do we since the poster has not complied with requests for this information, and generally statute of frauds wouldn't apply to a situation like this anyways.  Regardless, if its an affirmative defense in his state then it likely is completely irrelevant.

You know what they say about a little knowedge?

Don't tell people to "ignore this thread" when don't know what your talking about.


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Offlinec1dh3d
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Re: Question about small-claims court [Re: johnm214]
    #13593926 - 12/07/10 12:05 AM (13 years, 1 month ago)

Ahh, I've been following every response, but somehow missed the request for the location - Minnesota.

Thanks for all the responses too, although I know there is some individual research that needs to be done, you guys are giving me a lot of information to help her make a decision :thumbup:

As of yet, no law-suit has been filed, and there is no certainty of when/if it will happen (although in terms of "if" I assume it will).


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OfflineSeussA
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Re: Question about small-claims court [Re: c1dh3d]
    #13594437 - 12/07/10 04:23 AM (13 years, 1 month ago)

> you guys are giving me a lot of information to help her make a decision :thumbup:

My aunt has an $800 cigarette lighter that she showed me once.  It is actually a cheap metal sleeve that fits a cheap Bic lighter.  She had loaned a friend $800, but was never repaid.  The friend had also accidentally left her lighter at my aunt's house.  Thus, my aunt now has an $800 lighter.


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InvisibleStonehenge
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Re: Question about small-claims court [Re: Seuss]
    #13594834 - 12/07/10 08:45 AM (13 years, 1 month ago)

c1d, you have been assured by the best jailhouse lawyers in the business that you can't lose. The judge will look at her honest face and rule in her favor. The aunt will fess up and pay without a fuss. Or... none of that will happen.


--------------------
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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