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c1dh3d
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Question about small-claims court
#13570663 - 12/01/10 09:58 PM (13 years, 1 month ago) |
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My mom divulged to me tonight that my aunt (her sister) borrow a few thousand dollars 5 years ago, and told her tonight she doesn't want to hear from her again and "will pay her back when she feels like it." Given that out of 5 year of waiting, she has only gotten back $1500, she has decided she is going to sue my Aunt for the other $1500.
Here enlies the problem / my question. My mom does not have a written / signed agreement to pay her back the money, as being it was her sister, she didn't feel that necessary. Here is the following evidence that she has:
- A typed letter from her sister, whining about a bunch of shit, but mentioning the money owed. This letter is both typed, and unsigned (probably completely worthless)
- A photocopy of the check she received for half the payment ($1500), and in the memo portion it states "For: owed balance of $1500"
- Can possibly obtain records of where the check was deposited, but I don't see this as being much use either
What I told her was that she needed some form of admittance of the owed money, signed or not, for at least the sake of evidence. I have heard that recording audio without expressly disclosing to the person that you are recording it for use in court, will result in the said audio admittance being thrown out as evidence.
What I suggested, was to possibly email the aunt, stating something about the money so that she hopefully responds with an admittance of the debt. This would at least have her email / name on it, which I am sure is still very weak, but could any of this add up to a decent case to get a ruling in favor of her case?
Without a written / signed agreement to pay her back, is there any chance in hell of her being in favor of the ruling?
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Anonymous #1
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Re: Question about small-claims court [Re: c1dh3d] 1
#13570694 - 12/01/10 10:04 PM (13 years, 1 month ago) |
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Judge Judy that shit, man.
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oldmyco
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Re: Question about small-claims court [Re: Anonymous #1]
#13570717 - 12/01/10 10:08 PM (13 years, 1 month ago) |
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family and money issues are tough man. the check she gave her and that was cashed is great evidence.
basically it will go to small claims and they will both plead their case, it will be word vs word, but with that check at least your mother has a fighting chance to win. the judge can indeed decide that your aunt isnt being truthful and rule against her.
if you have other family members, having them pressure your aunt is a good idea. going to court sucks im sure. on a side note, thats a pretty shitty way to pay back your mothers kindness.
-------------------- Deal with it
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c1dh3d
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Re: Question about small-claims court [Re: Anonymous #1]
#13570727 - 12/01/10 10:09 PM (13 years, 1 month ago) |
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Quote:
Anonymous said: Judge Judy that shit, man.
Actually already got her applied for the show I figure my mom would win be default, because my Aunt is a humongous bitch, and would end up getting thrown out of the courtroom.
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oldmyco
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Re: Question about small-claims court [Re: c1dh3d]
#13571905 - 12/02/10 06:52 AM (13 years, 1 month ago) |
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im not a lawyer by any means but i have been to small claims court. its much looser than a court with lawyers. meaning the laws still apply but the judge has a bit more leeway to decide if someone is lying.
here is the scenario i picture
your mom claims she lent her money hopefully your aunt flat out denies this , which she may your mom shows the 1500 payment from your aunt the judge asks your aunt what that is all about
your aunt starts to backpeddle saying she only borrowed 1500
and hopefulllllly, the judge digs into her about it, asking why she didnt bring that up from the start.
with a few witnesses i think your mom has a good chance of winning in small claims court
judge judy and the tv shows pay the pepole to be on the show. if your aunt doesnt want to go, they will actually pay her, and use an actress in her place. no lie. they may also offer to pay some if not all of the judgement
-------------------- Deal with it
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Seuss
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Re: Question about small-claims court [Re: oldmyco]
#13572093 - 12/02/10 07:56 AM (13 years, 1 month ago) |
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> hopefully your aunt flat out denies this , which she may
More likely, she will claim it was a gift.
> your mom shows the 1500 payment from your aunt
At which point the aunt is screwed.
-------------------- Just another spore in the wind.
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johnm214


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Re: Question about small-claims court [Re: c1dh3d]
#13572130 - 12/02/10 08:10 AM (13 years, 1 month ago) |
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Where was the loan made? Where are the parties living now? Country, state/province
Don't worry so much about "proof". You don't need anything that fancy. As long as your mom is willing to go through the process and follow instructions (i.e. follow the law and insist on her rights), she'll probably get judgment if it was a valid loan and outstanding.
What evidence do you have of the money being loaned? How was the money transfered to yoru aunt? If by check or something, get a copy and hopefully the endorsement.
Then you get the Aunt on the stand and grill her. If she goes the "gift" route, you nail her with the memo and anyone else's testiomny who is aware of the loan. If she claims anything else, she's probably screwed.
Depending on the law, without a loan agreement there may be some defenses and statute of limitations issues, but these are usually affirmative defenses that your aunt likely won't know enough to raise unless she gets an attorney.
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Cyclohexylamine
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Re: Question about small-claims court [Re: johnm214]
#13572294 - 12/02/10 09:08 AM (13 years, 1 month ago) |
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Quote:
> hopefully your aunt flat out denies this , which she may
More likely, she will claim it was a gift.
> your mom shows the 1500 payment from your aunt
At which point the aunt is screwed.
Because of this don't tell your aunt anything about having any proof. This will allow for her to slip up more easily.
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Stonehenge
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Unless the aunt admits the loan, the case is a loser. A check for payment does not prove the other half was loaned. Don't throw good money after bad, it costs money to file a claim and serve papers. It also makes family feuds worse, the happy endings are mostly in the movies. Moral of the story is don't loan money to relatives and any loan should be documented.
Even getting a judgement does not mean you will get paid. It can be hard to collect.
-------------------- “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) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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oldmyco
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Re: Question about small-claims court [Re: Stonehenge]
#13574183 - 12/02/10 04:18 PM (13 years, 1 month ago) |
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it costs thirty bux to file a claim in my state, probably pretty similar in others. not pursuing it is silly. five grand of money hard earned is nothing to just write off, family or not.
if my brother owed me five grand and told me to piss off, id show up at his house with an axe handle.
-------------------- Deal with it
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Stonehenge
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Re: Question about small-claims court [Re: oldmyco]
#13574287 - 12/02/10 04:33 PM (13 years, 1 month ago) |
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5 grand? I thought it was 1500? 30 bucks is dirt cheap, it's a lot more many places to file, plus the process server. All it will likely do is piss off the aunt so she never pays. You have to prove your claim to get a judgement and even that can be very hard to collect.
-------------------- “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) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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oldmyco
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Re: Question about small-claims court [Re: Stonehenge]
#13574424 - 12/02/10 04:58 PM (13 years, 1 month ago) |
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Quote:
Stonehenge said: 5 grand? I thought it was 1500? 30 bucks is dirt cheap, it's a lot more many places to file, plus the process server. All it will likely do is piss off the aunt so she never pays. You have to prove your claim to get a judgement and even that can be very hard to collect.
yeah she borrowed five grand, paid back 1500 so 3500 outstanding balance.
yeah its pretty cheap here to file. and to be honest its not as hard to win in small claims court. i dont want to say the rules are bent but they definitely play by a different set to a certain extent.
i won in small claims court easily. granted i had a good chunk of proof, but when you go you sit through other peoples cases, and i saw just how little hard evidence you need if the judge feels the other person is lying.
if she doesnt pursue it she will never get paid, if she does she has a chance. imo the sisterly friendship is long dead since the aunt is acting this way. his mom , imo, should recoup her hard earned money, and then cut her losses family wise
-------------------- Deal with it
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Seuss
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Re: Question about small-claims court [Re: Stonehenge]
#13574484 - 12/02/10 05:08 PM (13 years, 1 month ago) |
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> Unless the aunt admits the loan, the case is a loser.
I disagree completely, given what has been stated. The aunt already returned part of the loan, thus she has shown that it was not a gift, even in her mind. Small claims judges hear "it was a gift" excuse every single day. They are very good at spotting bullshitters.
> i saw just how little hard evidence you need if the judge feels the other person is lying.
Exactly. Small claims is not like a court with lawyers and a jury.
> All it will likely do is piss off the aunt so she never pays.
Would that not be contempt of court?
-------------------- Just another spore in the wind.
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oldmyco
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Re: Question about small-claims court [Re: Seuss] 1
#13574514 - 12/02/10 05:14 PM (13 years, 1 month ago) |
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damnit people im a pro at this i watch judge judy like a mofo!!!
-------------------- Deal with it
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luvdemshrooms
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Re: Question about small-claims court [Re: Seuss]
#13574547 - 12/02/10 05:23 PM (13 years, 1 month ago) |
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Quote:
Seuss said: > All it will likely do is piss off the aunt so she never pays.
Would that not be contempt of court?
Let me tell you how it works here in my state where I have won several judgments.
1. I win a judgment against shitbag. 2. Receive no payment from shitbag. 3. File papers for non-payment, which costs me money. 4. Have Sheriff serve papers to shitbag, which costs me money. 4. Shitbag files "Affidavit Of Financial Responsibility". This is a form showing income and expenses for shitbag. 5. Judge says Sorry Sir but they have no way to pay at this time. Try again in a few months. Or, in rare cases, orders shitbag to pay me 5.00 per month for the rest of my fucking life. 6. Repeat steps 3 - 5 until you realize the utter futility of your endeavor.
-------------------- You cannot legislate the poor into prosperity by legislating the wealthy out of prosperity. What one person receives without working for another person must work for without receiving. The government cannot give to anybody anything that the government does not first take from somebody else. When half of the people get the idea that they do not have to work because the other half is going to take care of them and when the other half gets the idea that it does no good to work because somebody else is going to get what they work for that my dear friend is the beginning of the end of any nation. You cannot multiply wealth by dividing it. ~ Adrian Rogers
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oldmyco
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Re: Question about small-claims court [Re: luvdemshrooms]
#13574567 - 12/02/10 05:27 PM (13 years, 1 month ago) |
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Quote:
luvdemshrooms said:
Quote:
Seuss said: > All it will likely do is piss off the aunt so she never pays.
Would that not be contempt of court?
Let me tell you how it works here in my state where I have won several judgments.
1. I win a judgment against shitbag. 2. Receive no payment from shitbag. 3. File papers for non-payment, which costs me money. 4. Have Sheriff serve papers to shitbag, which costs me money. 4. Shitbag files "Affidavit Of Financial Responsibility". This is a form showing income and expenses for shitbag. 5. Judge says Sorry Sir but they have no way to pay at this time. Try again in a few months. Or, in rare cases, orders shitbag to pay me 5.00 per month for the rest of my fucking life. 6. Repeat steps 3 - 5 until you realize the utter futility of your endeavor.
as a general rule yes that happens. but this is family. his mom may know where she is working. unlike a stranger who can work off the books and say they have no income or money etc, his mom knows ,,possibly knows, her financial history or details or income etc
-------------------- Deal with it
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c1dh3d
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Re: Question about small-claims court [Re: oldmyco]
#13574748 - 12/02/10 06:24 PM (13 years, 1 month ago) |
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The total loan was 3000, of which 1500 is paid.
Im under the impression, that in MN courts will either garnish wages or confiscate state tax returns to pay the owed amount.
And yes, the two work for the same company, at different locations.
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luvdemshrooms
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Re: Question about small-claims court [Re: c1dh3d]
#13574967 - 12/02/10 07:13 PM (13 years, 1 month ago) |
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Quote:
oldmyco said: as a general rule yes that happens. but this is family. his mom may know where she is working. unlike a stranger who can work off the books and say they have no income or money etc, his mom knows ,,possibly knows, her financial history or details or income etc
It doesn't matter if it's family or not.
It doesn't matter if they are working on or off the books or if I know where they are working.
Some states/courts/judges do not take matters like this seriously.
Quote:
c1dh3d said: Im under the impression, that in MN courts will either garnish wages or confiscate state tax returns to pay the owed amount.
Alas, the state I am in will not garnish wages. Several will not. And as we pay no state income tax, that's not an option. Your mom should consider herself fortunate that hers will.
-------------------- You cannot legislate the poor into prosperity by legislating the wealthy out of prosperity. What one person receives without working for another person must work for without receiving. The government cannot give to anybody anything that the government does not first take from somebody else. When half of the people get the idea that they do not have to work because the other half is going to take care of them and when the other half gets the idea that it does no good to work because somebody else is going to get what they work for that my dear friend is the beginning of the end of any nation. You cannot multiply wealth by dividing it. ~ Adrian Rogers
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oldmyco
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Re: Question about small-claims court [Re: luvdemshrooms]
#13575161 - 12/02/10 08:34 PM (13 years, 1 month ago) |
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just tell her to take her to court and let the cards fall where they may nothing we say here matters
she will win im willing to bet on it
-------------------- Deal with it
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luvdemshrooms
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Re: Question about small-claims court [Re: oldmyco]
#13576382 - 12/03/10 03:30 AM (13 years, 1 month ago) |
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Quote:
oldmyco said: just tell her to take her to court and let the cards fall where they may nothing we say here matters
True enough.
-------------------- You cannot legislate the poor into prosperity by legislating the wealthy out of prosperity. What one person receives without working for another person must work for without receiving. The government cannot give to anybody anything that the government does not first take from somebody else. When half of the people get the idea that they do not have to work because the other half is going to take care of them and when the other half gets the idea that it does no good to work because somebody else is going to get what they work for that my dear friend is the beginning of the end of any nation. You cannot multiply wealth by dividing it. ~ Adrian Rogers
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Stonehenge
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Re: Question about small-claims court [Re: luvdemshrooms]
#13576602 - 12/03/10 11:07 AM (13 years, 1 month ago) |
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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) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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johnm214


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Re: Question about small-claims court [Re: Seuss]
#13576609 - 12/03/10 11:10 AM (13 years, 1 month ago) |
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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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Seuss
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Re: Question about small-claims court [Re: Stonehenge]
#13577223 - 12/03/10 01:46 PM (13 years, 1 month ago) |
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> 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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johnm214


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Re: Question about small-claims court [Re: Seuss]
#13577376 - 12/03/10 02:17 PM (13 years, 1 month ago) |
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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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Stonehenge
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Re: Question about small-claims court [Re: Seuss]
#13578097 - 12/03/10 04:37 PM (13 years, 1 month ago) |
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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) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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c1dh3d
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Re: Question about small-claims court [Re: Stonehenge]
#13578153 - 12/03/10 04:51 PM (13 years, 1 month ago) |
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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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johnm214


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Re: Question about small-claims court [Re: Stonehenge]
#13578234 - 12/03/10 05:22 PM (13 years, 1 month ago) |
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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.
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Seuss
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Re: Question about small-claims court [Re: Stonehenge]
#13580714 - 12/04/10 07:58 AM (13 years, 1 month ago) |
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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
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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.
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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.)
-------------------- Just another spore in the wind.
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Stonehenge
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Registered: 06/20/04
Posts: 14,850
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Re: Question about small-claims court [Re: Seuss]
#13580768 - 12/04/10 08:38 AM (13 years, 1 month ago) |
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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) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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Seuss
Error: divide byzero



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Re: Question about small-claims court [Re: Stonehenge]
#13582090 - 12/04/10 03:36 PM (13 years, 1 month ago) |
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> 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.
-------------------- Just another spore in the wind.
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Stonehenge
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Registered: 06/20/04
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Re: Question about small-claims court [Re: Seuss]
#13582557 - 12/04/10 05:29 PM (13 years, 1 month ago) |
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"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) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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johnm214


Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Question about small-claims court [Re: Stonehenge]
#13583038 - 12/04/10 07:14 PM (13 years, 1 month ago) |
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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.
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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
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Re: Question about small-claims court [Re: johnm214]
#13587802 - 12/05/10 09:28 PM (13 years, 1 month ago) |
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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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Stillmatic9142
Learner



Registered: 01/14/10
Posts: 797
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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) |
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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
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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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Stillmatic9142
Learner



Registered: 01/14/10
Posts: 797
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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) |
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Quote:
Anonymous said:
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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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johnm214


Registered: 05/31/07
Posts: 17,582
Loc: Americas
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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) |
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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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c1dh3d
The elephant is BACK




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



Registered: 04/27/01
Posts: 23,480
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Re: Question about small-claims court [Re: c1dh3d]
#13594437 - 12/07/10 04:23 AM (13 years, 1 month ago) |
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> you guys are giving me a lot of information to help her make a decision 
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.
-------------------- Just another spore in the wind.
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Stonehenge
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Registered: 06/20/04
Posts: 14,850
Loc: S.E.
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Re: Question about small-claims court [Re: Seuss]
#13594834 - 12/07/10 08:45 AM (13 years, 1 month ago) |
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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) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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Seuss
Error: divide byzero



Registered: 04/27/01
Posts: 23,480
Loc: Caribbean
Last seen: 2 months, 19 days
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Re: Question about small-claims court [Re: Stonehenge]
#13594884 - 12/07/10 09:11 AM (13 years, 1 month ago) |
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> c1d, you have been assured by the best jailhouse lawyers in the business that you can't lose
You and ScavangerType should get together. You two are peas in a pod. If you have nothing better to do than troll, please refrain from posting. Everybody has stated their opinions, but you are the only one that seems to be butthurt that the OP is considering all of the opinions rather than bowing down to your word as if it were coming from the mouth of the almighty.
I'm fairly certain that the OP has figured out:
1) That none of us are lawyers, though some of us have had at least a bit of law school. 2) That any legal action might create larger rifts within the family. 3) That the case may not be eligible depending upon local jurisdiction. 4) That the case may be easy to win. 5) That the case may be difficult to win. 6) Other opinions that have been posted.
-------------------- Just another spore in the wind.
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Stonehenge
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Registered: 06/20/04
Posts: 14,850
Loc: S.E.
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Re: Question about small-claims court [Re: Seuss]
#13595186 - 12/07/10 10:44 AM (13 years, 1 month ago) |
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Oh, so when i sum up some of the things that have been said, it's trolling. But when you do it its fine. I insulted no one. I have nothing further to say to you ever.
-------------------- “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) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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luvdemshrooms
Two inch dick..but it spins!?


Registered: 11/29/01
Posts: 34,247
Loc: Lost In Space
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Re: Question about small-claims court [Re: Stonehenge] 1
#13595341 - 12/07/10 11:17 AM (13 years, 1 month ago) |
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Stonehenge said: Oh, so when i sum up some of the things that have been said, it's trolling. But when you do it its fine. I insulted no one. I have nothing further to say to you ever.
I bet Seuss will cry himself to sleep tonight knowing you have nothing further to say to him.
Ever.
-------------------- You cannot legislate the poor into prosperity by legislating the wealthy out of prosperity. What one person receives without working for another person must work for without receiving. The government cannot give to anybody anything that the government does not first take from somebody else. When half of the people get the idea that they do not have to work because the other half is going to take care of them and when the other half gets the idea that it does no good to work because somebody else is going to get what they work for that my dear friend is the beginning of the end of any nation. You cannot multiply wealth by dividing it. ~ Adrian Rogers
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johnm214


Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Question about small-claims court [Re: c1dh3d]
#13595392 - 12/07/10 11:30 AM (13 years, 1 month ago) |
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c1dh3d said: Ahh, I've been following every response, but somehow missed the request for the location - Minnesota.
Cool beans. I know it can be hard to figure out what information is relevant. In this case, the varities of state laws make the issue important. For example, Anon has no basis to make his comment on the Statute of Frauds without this info.
Anyways, in Minnesota, you should be cool.
Let's assume the worst and assume that the statute of frauds is applicable and would be both plead as a defense by the defendant and would bar the claim. Even in this situation, it shouldn't bar the action due to the promise to pay.
You're Aunt previously, even after the loan was made, promised to pay, correct? Do you have this in writing at all? Did anyone actually witness her saying this to your mother? (if so, this can be used agains the aunt if she tries to deny it)
If this can be established, it wouldn't matter, provided you plead a promissery estoppel claim. Basically, this bars people from taking a contrary position in a judicial proceeding than they did in a promise that the agrieved party actually relied upon.
In this case, it would be a bar to any promissory estoppel claim- even if your aunt hired a lawyer or had the wherewithal to perfect this claim: Promissory estoppel exists if "a party makes a promise knowing another party reasonably relies and acts upon that promise, and the promise must be enforced to avoid injustice." See: Norwest Bank Minn., 481 N.W.2d at 880
"In Minnesota, promissory estoppel may be claimed in an attempt to circumvent a valid statute of frauds defense." See:, e.g., Berg v. Carlstrom, 347 N.W.2d 809, 812 (Minn. 1984); Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 284-85, 230 N.W.2d 588, 594 (1975); Norwest Bank Minn. v. Midwestern Mach. Co., 481 N.W.2d 875, 880 (Minn. App. 1992), review denied (Minn. May 15, 1992). Citations in original, taken from: Bandal v Baldwin, 2000 Minn. App. LEXIS 1169, pg 4, (Minn. App. 2000) http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjhdg&searchTerm=ebSd.CEba.aadj.eejO&searchFlag=y&l1loc=FCLOW
The normal creditor-lender laws of MN wouldn't seem to apply to this case cuz your mom wouldn't be a creditor per their terms. As for the statute of frauds, it is relevant when the aunt was supposed to pay back the money. Was a term discussed or specified? If this term was greater than a year, the statute of frauds may be a defense the aunt could use if she raises it- MN seems to bar claims per SOF for repayment of money that aren't in writing if they aren't payable within a year by their terms. (obviously, this would be an issue of fact that your Aunt would bear the burden of proof on, but if your mom admits facts establishing this, its going to apply).
Quote:
No action shall be maintained, in either of the following cases, upon any agreement, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party charged therewith:
(1) every agreement that by its terms is not to be performed within one year from the making thereof
See: 513.01 https://www.revisor.mn.gov/statutes/?id=513.01
Note, however, that the promissery estoppel claim wouldn't be affected by this, even if your aunt manages to raise the defense and prove it- makin the issue of the emails or any type of acknowledgment, even verbal, by your Aunt quite relevant. It is also relevant and helpful if your mother can show some reliance on this promise, i.e. that she didn't sue, lent her more money, gave her something due to the promise, whatever.
As to whether the statute of frauds will even matter if it is applicable, it depends on whether the Aunt brings it up. Since its an affirmative defense, it isn't an absolute bar to the action, and is only applicable if the Aunt pleads this defense. To this end, it may or may not be advantageous to sue her in a regular court. I'm unsure how small claims works in MN, but in a normal court, if you don't list your affirmative defenses in your answer (the document the defendant files after being sued that states whether they admit or deny the allegations, and formally notices their appearance in the action_), then you're generally barred from using them as a defense unless the court grants you leave to amend your answer et cet. Of course there's always the danger that filing in regular court would make her more likely to hire a lawyer or something like that, but that's something for you guys to consider.
As to the statute of limitations, it seems this would be a normal contract matter and 6 years would be the limit, though exceptions may apply. Your mother should be aware of this and make her decision soon, though their could always be some limitation to oral contracts I didn't find. Either way, statute of limitations claims are often (usually?) affirmative defenses that must be raised by the defendant, so if this is the case in MN,. its not necessarily fatal, but could be another reason to not go to small claims court .
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johnm214


Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Question about small-claims court [Re: Seuss]
#13595408 - 12/07/10 11:35 AM (13 years, 1 month ago) |
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luvdemshrooms said:
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Stonehenge said: Oh, so when i sum up some of the things that have been said, it's trolling. But when you do it its fine. I insulted no one. I have nothing further to say to you ever.
I bet Seuss will cry himself to sleep tonight knowing you have nothing further to say to him.
Ever.
Indeed.
I only wish I had received this blessing.
Quote:
Seuss said: > c1d, you have been assured by the best jailhouse lawyers in the business that you can't lose
You and ScavangerType should get together. You two are peas in a pod. If you have nothing better to do than troll, please refrain from posting.
Hey now, I've seen ScavengerType come up with sources to back his claims on several occasions. Lets not libel the chap here by comparing him to the great Stonehenge- what with his perfect record of never coming up with any citation to law in support of his 'questionable' claims in this forum.
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Anonymous #2
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Re: Question about small-claims court [Re: johnm214]
#13596203 - 12/07/10 02:19 PM (13 years, 1 month ago) |
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johnm214 said: Cool beans. I know it can be hard to figure out what information is relevant. In this case, the varities of state laws make the issue important. For example, Anon has no basis to make his comment on the Statute of Frauds without this info.
First I apologize for my tone earlier, and I appreciate the work you put in Johnm to help this person.
However, I did have a basis, every state has a statute of frauds. Source. But yes, state specific information is more helpful.
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Seuss
Error: divide byzero



Registered: 04/27/01
Posts: 23,480
Loc: Caribbean
Last seen: 2 months, 19 days
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Re: Question about small-claims court [Re: johnm214]
#13596518 - 12/07/10 03:16 PM (13 years, 1 month ago) |
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> Hey now, I've seen ScavengerType come up with sources to back his claims on several occasions.
Less to do with sources and more to do with ad hominem.
> I only wish I had received this blessing.
Certainly saves me from having to take time and reply.
> First I apologize for my tone earlier, and I appreciate the work you put in Johnm to help this person.
(I'm speaking in general, not towards anything John posted.)
It is always nice to (try and) remain respectful, but you do a service by calling people out on sloppy advice, poor wording, etc. Most of us do not take this to be disrespectful, especially in light of the potential consequences that can come from mistakes. The big mistake that I see most often, and sometimes commit myself, is forgetting about jurisdiction and assuming that what applies locally applies globally. Providing sources is also beneficial. Please, don't be a stranger and don't worry too much about the noise.
-------------------- Just another spore in the wind.
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johnm214


Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Question about small-claims court [Re: Seuss]
#13596630 - 12/07/10 03:38 PM (13 years, 1 month ago) |
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Quote:
Anonymous said:
Quote:
johnm214 said: Cool beans. I know it can be hard to figure out what information is relevant. In this case, the varities of state laws make the issue important. For example, Anon has no basis to make his comment on the Statute of Frauds without this info.
First I apologize for my tone earlier, and I appreciate the work you put in Johnm to help this person.
No problem. Likewise, sorry if I came off as snappy. 
Mentioning the statute of frauds is indeed a good point
Quote:
However, I did have a basis, every state has a statute of frauds. Source. But yes, state specific information is more helpful.
Sure. What I meant though is that some states have a bit different applicability to there statues. For example, I don't think the statute of frauds would apply in Ohio for this situation where it was a person to person loan rather than with one party being a buisness. In MN, however; the statute of frauds seems a bit more robust- seems it does cover this case.
Anyways, I think I cited in my post the portion of the law in MN that has to do with this defense. There are other provisions, but they seem to not apply to this situation where nobody is a "creditor" as defined in the buisness code (a buisness or something).
As far as I can tell, MN's SOF is entirely statutory, and in any case, I believe the promissory estoppel claim should cover all the bases if the Mom can make that stick. I kinda doubt the Aunt will come up with a lawyer or a clue and plead this, but you never know- maybe the judge will raise it on their own accord. For this reason I would wonder whether a more formal court might be better. It would also give the mom discovery which could help out greatly w/ regard to documentary evidence (bank accounts of the aunt showing the deposit and payments, proving the amount, et cet- probably easier to demand these in discovery than to subpoena her or the bank if you're even allowed to do that in their small claims court)
Quote:
Seuss said:
It is always nice to (try and) remain respectful, but you do a service by calling people out on sloppy advice, poor wording, etc.
Agreed, anyways, he ended up being right in his hunch. MN seems to have a pretty expansive SOF.
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Please, don't be a stranger and don't worry too much about the noise.
Agreed nice to have you around, ANON
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