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Do you have to prove your case if you get a default judgement?

Discussion in 'Small Claims & Municipal Court' started by russharv63, Nov 29, 2015.

  1. russharv63

    russharv63 Law Topic Starter New Member

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    Jurisdiction:
    Virginia
    I hired a unemployment appeals representative from a internet business based in Pennsylvania. I paid them $400.00 to representative me at my appeal hearing in Richmond, Virginia. They communicated with the Virginia Employment Commission only by email and never actually came to Virginia to represent me. I lost my appeal because they breached our contract. I sent them a breach of contract notice and they sent me a check for $400.00 which covers the service I paid them to represent me in Richmond. I have not cashed the check yet. After they sent me the check I then sent them a demand letter asking for $4,070.00 which covers the full amount of unemployment benefits I could have got if they had not breached the contract. I gave them 15 days to respond. The 15 days has come and gone and they have not responded. I would like to file a lawsuit in the Virginia small claims court asking for the $4,070.00. I believe they will not show up because of their location and the fact it would not be worth their time to do so. Also, they are a small business and I can't see them being there. If I get a default judgement on them what are the chances the judge will award me the $4,070.00. Is asking for the $4,070.00 to much to expect and even if I get a default judgement because they are a no show is it likely or not the judge will side with me? He is not going to award it to me just because they did not show up, right? Do I have to prove anything to the judge or will he just award me the $4,070.00?
     
  2. adjusterjack

    adjusterjack Super Moderator

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    "I paid them $400.00 to representative me at my appeal hearing in Richmond, Virginia. They communicated with the Virginia Employment Commission only by email and never actually came to Virginia to represent me."

    Where, in your contract, does it say they had to send somebody to Richmond? Quote it word for word.

    "I lost my appeal because they breached our contract."

    Perhaps you lost because you just weren't eligible for UI. What were the circumstances surrounding your termination from employment?

    "I believe they will not show up because of their location and the fact it would not be worth their time to do so."

    You are naive, stupid, and foolish if you believe that.

    "Do I have to prove anything to the judge or will he just award me the $4,070.00?"

    Pennsylvania Rule 1037 says (among other things):

    (d) In all cases in which equitable relief is sought, the court shall enter an appropriate order upon the judgment of default or admission and may take testimony to assist in its decision and in framing the order.

    231 Pa. Code Rule 1037. Judgment Upon Default or Admission. Assessment of Damages.

    My take on that is that you had better be prepared with your evidence when you seek a default judgment.
     
    Last edited: Nov 29, 2015
  3. army judge

    army judge Super Moderator

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    If the defendant is properly served and fails to appear, the plaintiff receives a default judgment without being required to PROVE anything.

    That's the easy part.

    Once the plaintiff has the default judgment, he or she endeavors to collect on it.

    Collection is accomplished on fewer than 5% to 10% of all judgments.

    If your defendant is outside your state, collection becomes ALL but impossible. Why? It's almost impossible to sue a plaintiff outside your state in small claims.
     
  4. adjusterjack

    adjusterjack Super Moderator

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    Seems to me that Rule 1037(d) wouldn't make it that easy.
     
  5. russharv63

    russharv63 Law Topic Starter New Member

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    I am not filing the lawsuit in Pennsylvania. I am filing it in Virginia. That is where the service I paid $400.00 for was done.
     
  6. army judge

    army judge Super Moderator

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    I never said it was easy.

    However, filing and serving your mark, err, defendant is far easier than ever collecting a dime on any judgment you might receive.

    By the way, you can forget all of those rules of civil procedure in a small claims case.

    Yes, you can file in his state, versus yours.

    I suggest you figure in your travel costs to do that.

    Those costs will be out of your potential award, not tacked on to any award.

    Bottom line, your theory of your case is weak, very weak.

    The defendant owed you no duty to appear in Richmond.

    That said, you might be able to have the PA authorities pursue a criminal case against the weasel.

    What you describe could be considered practicing law without a license.

    That is probably why the scammer quickly refunded ALL of the money he scammed out of you, to make sure you didn't whine about his actions to the authorities.

    PA is rife with people pretending to be paralegals and scamming unsuspecting people with legal or administrative law related troubles.

    Talk to the police and/or the prosecutor in his city or county.

    See what you can learn during such conversations.
     
  7. adjusterjack

    adjusterjack Super Moderator

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    OK, just to be clear. You are located in Virginia. The service is located in Pennsylvania. You want to sue in Virginia.

    You can do that under Virginia statute 8.01-328.1:

    2006 Code of Virginia § 8.01-328.1 - When personal jurisdiction over person may be exercised

    You would have to show, in your complaint, that the court has personal jurisdiction over the defendant for one or more of the reasons specified.

    There are more pitfalls that you'll find out about in the procedure guide:

    http://www.courts.state.va.us/resources/small_claims_court_procedures.pdf

    One major pitfall arises because attorneys are not permitted to represent parties in small claims court. A defendant has the option of removing the case to a higher court where he can have an attorney and where the procedures are more rigorous and technical. Going up against a lawyer without one of your own is like taking a rubber knife to a gunfight. You'll be the one on the ground bleeding.

    Even if you manage to survive the lawsuit and come out the other end with a judgment against the company, you'll have even bigger problems trying to collect.

    A Virginia court can't help you so you'll have to domesticate (register) the judgment in Pennsylvania and deal with Pennsylvania court to enforce the judgment.
     
  8. russharv63

    russharv63 Law Topic Starter New Member

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    I am filing the lawsuit in Virginia not Pennsylvania because even though they are from Pennsylvania they had to contact the Virginia Employment Commission in Richmond Virginia so as to represent me on my appeal hearing. They did have contact with them because I have proof they filed my appeal with the VEC in Richmond Virginia even though it was by email. I already contacted the Pennsylvania attorney general office and they said they could not help me. They are are legit business. They have been in business for over 20 years. They just gave me a unemployment representative who did not no the Virginia Employment Commission appeal procedures. All I wanted to know is if you assume they will not show up in Virginia for the trial and I get a default judgement will the judge automatically award me the $4,070.00 or will I still have to prove it?
     
  9. adjusterjack

    adjusterjack Super Moderator

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    You'll have to prove it.

    The following paragraph is from the Virginia small claims procedure.

    http://www.courts.state.va.us/resources/small_claims_court_procedures.pdf

    "If the civil warrant was served on the defendant in a legally correct way and he or she fails to appear on the return date, a “default judgment” may be entered against the defendant. In this situation, the court will enter a judgment for the plaintiff on the trial date based on sufficient evidence from the plaintiff supporting the claim."

    Note the last ten words of that paragraph.
     

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