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How to get my right at a small claims court as a foreigner

Discussion in 'Consumer Law, Contracts, Warranties' started by Benko, Mar 3, 2021.

  1. Benko

    Benko Law Topic Starter New Member

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    Jurisdiction:
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    Hello,

    i am here because i need an advice concerning getting my right at a Californian small claims court as a foreigner from Europe.

    In 2017 i took part in a crowdfunding campaign for a product costing my 599 $ US. The product was supposed to be delivered in the beginning of 2019. I usually don't do crowdfundings, but the difference here was that the terms of service clearly stated that i could get a refund at any time if i didn't want to get the product before it was delivered.

    Afterwards the company did everything to annoy the backers. Even after turning the campaign into a preorder this did not change. Delays, no (clear) communication, false promises, other products that also don't ship... So, in the beginning of 2020 i had enough and wanted to get a refund. As an answer i was told that they had just changed their terms of service (tos), and i had to wait until my item could be shipped. I know that in the US (as well as where i live) a later change of tos is not binding without consent of both parties. First i was not informed, then i clearly did not consent.

    I turned to the FTC, but they seem to feel responsible for Americans only. A lawyer i consulted said that my chances were pretty good, but this case was too small for him. Thus, i should turn to a small claims court. According to my research, in California where the company has its HQ one has to be physically present at court. This would probably cost me more than the item. So i decided to wait.

    Now the company ships items, but i don't want mine anymore. Due to the long wait i had to order another, and, above all, i don't buy from a company that behaves like this. So, when it was clear that my place in the cue should have been served, i asked once more when i will get my refund. As an answer i was told that i could either get the item or a coupon to cash in at their webshop. Both is not an option for me.

    So, is there any way i can get my matter to a small claims court without having to travel there from Europe? Or is there another way i can get my money? I have all emails, documents and screenshots ready, of course.

    Thank You in advance for Your help.

    Best
    Benko
     
  2. adjusterjack

    adjusterjack Super Moderator

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    You can hire a lawyer in CA to act for you. The threat of a lawsuit (from the local lawyer, not you) might get some results. But if a lawsuit gets filed you will have to appear in court to testify (lawyers not allowed in CA small claims court) or the defendant wins by default.

    That the company has offered to ship you the item or give you what amounts to a store credit and you declined might work against you in court.

    I suggest you accept the item (and resell it to recover as much as you can) or the store credit (and order something else).

    What you have experienced is the risk you take when you order something from another country. US residents take that risk any time they order something from overseas.
     
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  3. Benko

    Benko Law Topic Starter New Member

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    Thank You for Your answer, it is well appreciated.

    Is there a way to find a lawyer who does cases at small claims court? I did some research online and asked one via avvo.com, but as i said, he was very friendly, but declined, as the case did not fit his business model. At this portal there was no filter for showing only lawyers for this kind of thing.

    You say their offering of shipping now lowers my chances. The item i talk about is an electronics good, and the specs nowadays are outdated up to here. Additionally it is in a state of minimum viable product, so far. In the US they would not even be allowed to sell it at the moment because of legal requirements not met. And, as i said, when i demanded a refund i could not wait for a (then) indefinite time, as i needed a replacement for another item.
     
  4. Zigner

    Zigner Well-Known Member

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    Lawyers are not allowed to represent an individual in small claims court in California.

    Furthermore, even if you could have a lawyer represent you in small claims court, it would cost you more for the lawyer than the amount you are looking to recover, and those costs aren't recoverable in court.
     
  5. Benko

    Benko Law Topic Starter New Member

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    So the company can do what they want, as i have no legal means to get my right?
     
  6. Zigner

    Zigner Well-Known Member

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    There is a legal process that you have access to in order to address this. Unfortunately, it doesn't make financial sense to take advantage of that process.
     
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  7. zddoodah

    zddoodah Well-Known Member

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    So...did you actually receive the item or not?

    No.

    Probably not.

    This is a risk you take when you engage in a relatively small value transaction with a foreign person or entity. If the other party doesn't perform, suing won't be cost-effective.

    As "adjusterjack" mentioned, lawyers are not permitted to represent clients in California small claims court. You could sue in "regular" court (to be specific, you'd sue in the limited civil division of the superior court in the county where the company maintains its principal place of business). You said the amount at issue is $599, so the filing fee you'd pay to the court is $225, and there's no lawyer that would prepare a complaint for less than $300, and you'd have to pay a sheriff or process server to serve the complaint on the defendant, so you'd already be spending as much money as you're suing for. If you win, you'd be entitled to include the filing and service fees as part of the judgment, but you might not be entitled to recover your attorneys' fees. As "adjusterjack" also mentioned, you'd probably have to make at least one trip to California (deposition, trial...). The reality is that no one sues in "regular" court for such a small amount of money.

    Can it do anything it wants? Of course not. That's silly. And yes, you do have "legal means to get [your] right." But you have two problems. First, I can't clearly tell from your post that the company did anything wrong. You signed up through some website that presumably has several pages of terms and conditions that I haven't read, but the bottom line is that you paid for something that the company is now ready to send to you. Did it take so long that it amounted to a breach of contract? Maybe. Was that breach material such that you'd be entitled to terminate the contract? I don't know because I haven't read any relevant documents. Second, and possibly more importantly, you gave money to someone in another country without having any tangible security or any practical means of enforcing your rights. You knew or should have known this when you entered into the deal, so this is exactly what you signed up for. Use it as a learning experience.
     
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  8. army judge

    army judge Super Moderator

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    You had the RIGHT to say, "No thanks, I don't wish to participate in your crowdfunding campaign!"

    You chose to participate in the crowdfunding campaign.

    You voluntarily gave the scammer 600 US Dollars.

    Your right to sue in California isn't being denied, either.

    In fact, if your scammer does business in Germany, you are free to bring your lawsuit before the proper German court.

    If you wish to sue in California, you'll have to be present for the trial.

    However, most trials these days are being conducted by Zoom (as in remotely).

    You could certainly investigate initiating a small claims lawsuit in California in the county where the scammer does business, or has it's corporate HQ.

    Now that you know your rights have not be trampled, bring your lawsuit in whichever jurisdiction is appropriate.
     
  9. Benko

    Benko Law Topic Starter New Member

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    Probably we both mean the same. I only forgot to add the word "practically" - They can practically do what they want, as every means to my rights is impractical.

    Thank You for that elaborate answer. At the time i backed the campaign (via the company's own website - no kickstarter or similar services) the tos with regards to a refund read: "If, for any reason, you want to cancel your order before it was shipped, we will issue a full refund." There was no further differentiation.

    When i asked for a refund in 2020 they had just complemented that with "If you want to cancel an order for products that are in the process of crowdfunding or pre-order, we will issue a full refund once the crowdfunding/pre-order of the product is completed and all pre-orders are shipped." (without informing me and giving me the possibility to either accept or step back from the contract). I was told to wait until it was my place in the cue.

    Now, that my item could be shipped the tos reads the following: "If you want to draw funds from any product that you: crowdfund, back, pre-order, early purchase, pre-purchase: when your pre-order is reached in the shipping queue you can decide whether to have it shipped or opt for some other option." This was once again done without informing me, and at least implicitly asking for my consent.

    No, since i demanded a refund in 2020 i haven't gotten any emails from them proactively informing me about the state of things. When i asked for my money yesterday the gave me the options i stated: accept the item now, and thus with a delay that makes it practically useless (not even taking into account the state of the item itself), or accept a coupon for their shop. My question to them for the legal basis of this remains unanswered so far. I have not answered one or the other direction towards their offer, yet.

    I am afraid You are right. Here in Europe we live in the land of milk and honey when it comes to consumer rights. I did not do any research before i bought abroad, as i did not see that all these institutions would be needed. I knew there is the FTC (which is no help for foreigners, as i know now), there is the BBB which i naively equated with the ECC (which has the power to act), and yes, i naively assumed it would just work out. There are commercial agreements between both countries, which, i assumed, would cover for a thing like this in some way. I mean, the USA are no third world dictatorship, or something.
     
  10. mightymoose

    mightymoose Moderator

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    I don't think so. The company apparantly refused a refund a year ago and did not honor the right to cancel at any time before delivery as promised. Seems a pretty reasonable argument to make, but chasing $599 from Europe is probably not worth it.
     
  11. Benko

    Benko Law Topic Starter New Member

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    The first step in Germany would be to go to a Mahngericht (circa "admonitions court"). One pays them a fee, and they send official admonitions. Failed responses start a law-process. When i tried that they just waved off saying that this is impossible for companies in the US.

    I'll check out whether a trial at the appropriate small claims court could be conducted via Zoom. This would actually be a great solution. Thank You very much!
     
  12. Zigner

    Zigner Well-Known Member

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    IF you win, it's then on you to actually collect the money. The court doesn't help you with that in the US.
     
  13. army judge

    army judge Super Moderator

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    It isn't as difficult as it sounds.

    Check to see if the scammer has a physical office in Germany, or in any EU country.

    If the scammer does maintain even a one person office in Germany, your goal might not be as difficult as it originally seemed.

    If you discover the scammer maintains a physical presence in Germany or a member EU country, suing the scammer on the European continent might suddenly be a dream come true.
     
  14. zddoodah

    zddoodah Well-Known Member

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    What county is the company in? Regardless, I don't know of any county in California that is holding trials via Zoom. My company is routinely sued in small claims court (as well as "regular" court), and we have to send non-attorney representatives to the trials.
     
  15. Zigner

    Zigner Well-Known Member

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    It's not "Zoom", but San Diego does do allow attendance by phone or through Microsoft Teams:

    Small Claims Virtual Hearings

    I don't know about the other 57 counties...I don't have the energy to look.
     
  16. zddoodah

    zddoodah Well-Known Member

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    Well...how 'bout that? California courts are not at all technologically progressive. Nice to see one of the larger counties finally stepping up with something like this.
     
  17. army judge

    army judge Super Moderator

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  18. adjusterjack

    adjusterjack Super Moderator

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    You noted that you declined the offer of a store credit because you don't like the idea of continuing to deal with that company. That's like cutting off your nose to spite your face. Isn't there something, or things, that might be of use to you, other than the product you obviously don't want anymore? If you aren't willing to do that, you might as well give it up, kiss the money goodbye and get on with your life.
     
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  19. Benko

    Benko Law Topic Starter New Member

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    Sorry for answering just now. Didn't mean to be ungrateful.

    Unfortunately not. Had already checked that. But they are registered in the state of Washington. Are the rules for small claims courts different there? And if so, were it possble to get the case there?
     
  20. Benko

    Benko Law Topic Starter New Member

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    Their HQ is in South SF. They seem to offer video hearings as well: Small Claims | Superior Court of California - County of San Francisco

    If You are saying non-attorney reps, does that mean if i knew someone from there he could go to the court in my place?
     

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