Civil Suit Strategy?

[CanYouHelpMe1]

I'm looking for some legal advice regarding a civil lawsuit for an amount of about $14,000. This was a suit based upon a personal loan to a friend that is 2 years old and I have no proof other than a verbal promise regarding the amount and details of the interest. The amount loaned was actually about 10k, but with interest that was verbally agreed on the amount is about 14k now.

I filed a suit and he rec'd the summons, yet the did not show and I was awarded $14k as a default judgment. I proceeded to file paperwork for a paycheck garnishment which was seemingly approved and just recently rec'd a summons to appear in court. The defendant claims that he did not know he was being sued until the garnishment notice showed up and now we have a court date. We now have a date set for a "motion to set aside default judgment" and "Hearing To Garnishment". He wrote a handwritten note to the court saying "I didn't know I was being sued until after my check was garnished". I also have a signed copy of the company that signed off on having "served" the original summons.

The one thing I do have is a text message from his cell that he states an admission that he owes me money and is willing to pay 50 bucks/week when he gets a better job, but it does not address any other details of the amount owed. I also have a close friend that is a close friend of his that can verify existence of this loan if they were compelled, so in the event that he denies it in court, i'm wondering if I could file a police report and accuse him of fraud and lying in court for a further recourse if the court date doesn't go well. Although since they are his friend as well, they likely wouldn't volunteer help unless a court officer or police officer compelled them.

I also have the email address for his mother, would it serve as helpful in court if I sent her an email asking her to discuss a payoff plan with her son and then to get back with me if she writes something in the email to the effect that confirms she says she talked with him and he acknowledged the debt.

My questions are: (Michigan case)

1)How do I handle this case in court w/no evidence other than a verbal agreement if he tries to deny the loan?
2)Do I have any recourse to ask for more money or more interest and ammend the claim, if so what entitlements do I have to maximize the judgment?
3)Do I have recourse for fraud/purgery if he lies in court?
4)Does an email from his mother as inquired above help my case?
5)Any other tips/ideas I am not thinking of?

 

[Michael Wechsler]

The motion is the only real item to be concerned about. At that motion, he needs to swear/prove 2 things (it it is like most courts in the US)

1) That he did not receive the notice (or that it was not served properly.) I don't know how you served him.

2) There is a good reason to reopen this case - if he had an opportunity to defend himself, there is a reasonable chance he could win his defense.

If it's a foregone conclusion that there is no defense to the case (e.g. he's claiming the loan is offset by other things such as the time he took your mother to the hospital 5 times, etc.) then any defense won't change the outcome of the case and no reason to reopen.

1) The court found enough evidence the loan existed and I'm not sure how. Did you show the court some proof of existence like text/email messages or a payment?

2) The judgment is done - even if you could, on what basis would you ask for more money and why didn't you do it earlier?

3) Unfortunately most court systems don't punish perjury like they should. This has to be proven and prosecution is not up to you but a criminal matter.

4) Yes, an email from his mother may help your case. Was the email authenticated at all?

5) Small claims is very open and provides a great deal of leeway. Make sure you bring your proof, are organized and remember that the burden is now on the defendant to reopen the case. I don't know what the issues may be but one might be that the claim is that the judge awarded a judgment without sufficient proof. Your job is to nail that one shut by trying to show the defendant received the summons and should have appeared and now that is not an issue. Good luck.

 

[CanYouHelpMe1]

The motion is the only real item to be concerned about. At that motion, he needs to swear/prove 2 things (it it is like most courts in the US)

As a reply to your questions. Well I served him using the court officer. I paid him $25 and I have a copy of Proof of Service saying that the Court Officer personally served him. It is not signed in the Acknowledgment Section, and that Court Officer won't return my calls. The court says they have the form and everything is in order on their end and he is licensed and bonded and relied upon by the court and they dont require the Acknowledgement section to be signed.

As far as proof of the loan existing, I have none. I do have a text message saved on my phone from the defendant in which he admits he owes me money and plans to pay me 100 dollars a month when he has the money, but that's all I have.

In terms of the email being authenticated, what do you mean by that? I do not have an email from his mother, I just know what her address was and figured sending the email might get a response that could serve as evidence?

In terms of proving that he rec'd the summons is there anything I need to do in the meantime or just show up with my copy of the proof of service form?

 

[Michael Wechsler]

1) I don't know about the acknowledgement section issue. If the court clerk says it's fine then I guess you can rely upon that for now. With personal service, unless the description is clearly wrong, which it might be (check it out) such as where served and a description of the person served, you've practically won your motion.

2) A text message from him on your phone is enough to show proof the loan existed. He'll have to come to court and swear it was some other issue and also convince a judge that he isn't fibbing. Oral agreements are enforceable, it's just a matter of proof. Once it's been proven that he was served, his credibility in this part of the case might already be significantly diminished.

Yes, show up with the copy of the proof of service. Regarding the email from the mother, I don't know the details and am confused. You're probably better off just holding the text message if you need it and pressing the defendant to explain that one - and remember, he has to explain it. The court has already assumed that you are credible and burden is on him to reopen.

 

[CanYouHelpMe1]

1) I don't know about the acknowledgement section issue. If the court clerk says it's fine then I guess you can rely upon that for now. With personal service, unless the description is clearly wrong, which it might be (check it out) such as where served and a description of the person served, you've practically won your motion.

2) A text message from him on your phone is enough to show proof the loan existed. He'll have to come to court and swear it was some other issue and also convince a judge that he isn't fibbing. Oral agreements are enforceable, it's just a matter of proof. Once it's been proven that he was served, his credibility in this part of the case might already be significantly diminished.

Yes, show up with the copy of the proof of service. Regarding the email from the mother, I don't know the details and am confused. You're probably better off just holding the text message if you need it and pressing the defendant to explain that one - and remember, he has to explain it. The court has already assumed that you are credible and burden is on him to reopen.

The Proof Of Service form has no information on it other than the defendant's name and address and the time it was served. Nothing else is written on the form and there is no section for a description.

The email I'm saying is I know his mom's address. So I figured if I sent an email saying hey your son owes me a lot of money would you be willing to help him out with the repayment of that so that this court judgment doesn't affect his credit, then i figure one of two things might happen. Maybe she has money and offers to satisfy his debt for him, or maybe she says no and in her email says something like he told he owes you money on a loan but doesnt want me to pay you, then i would have evidence of the loan by her claiming she talked to her son and he acknowledged it in conversation to her? I was thinking of doing this anyways just because there's a chance she might help him with the debt so i can get paid sooner. Is this a gray area to send her such a message or would that screw up my case somehow?

Thanks for your help by the way.

 

[CanYouHelpMe1]

Oh and regarding your other question:

In my suit I described an amount that applies to some rent that he owed me for 3 months of living in my house and I did not charge him for utilities in the suit claim although I could have. So since I'm being dragged back to court I'm wondering what entitlements I have to bilk him for extra cash considering I tried to cut him some slack. So I could probably come up with a few hundred dollars of other money I didnt bother to disclose before, or is there any other rule on charging for other time and expenses in having to deal with this court date?

 

[Michael Wechsler]

Sending a note to his mother is your call. I wouldn't do it personally and it is his mother. If you didn't ask for the money in your suit there is no way a court is going to reopen a case so you can get another try. Additionally, a judge won't believe any of that money was in issue if you didn't sue for it when you could have and most won't be thrilled with you having wasted more of the court's time.

 

[CanYouHelpMe1]

Sending a note to his mother is your call. I wouldn't do it personally and it is his mother. If you didn't ask for the money in your suit there is no way a court is going to reopen a case so you can get another try. Additionally, a judge won't believe any of that money was in issue if you didn't sue for it when you could have and most won't be thrilled with you having wasted more of the court's time.

I was more curious on if it would be illegal in any way to pressure his mom into paying. Seems like we hear about these types of things every once in a while with shady collectors nowadays. Like would it be improper if I sent her a note stressing how a judgment could hurt his credit and cost him a lot of money in the long run and hamper his ability to pay his daily bills etc? How far can I push the envelope?

In terms of it being his mother, well there's no sympathy on my end because he is a very unsavory character and really his debt problems could be solved if he wasn't stubborn to the point of not asking a family member for a friendly loan. He has high interest debts that he takes on because he's afraid to ask, so I figured I'd force the issue because ONE, it will help me collect, and TWO, it's for his best interests anyhow to seek family help with his financial issues.

I wasn't looking to reopen the case, my suit claims 95% of the money he owed me, I was asking if I could "ammend" or adjust my claim upwards after he wastes the courts time if/when we find out he has no claim on bringing this back to court.

Also I spoke with the person who served him and he said he can probably make that date to swear that he did personally serve him and if he cant make it he said he will inform the judge beforehand that there was no mistake in this serving.