Upstate NY Small Claims / Questions

[JoeyBloeySmoey]

Hi,

I would like to file a small claims suit on an individual. I have a few questions below:

I spoke with the county court & they advised me that I can and possibly should file several separate suits for the different types of financial "claims" made, such as "repayment of personal loan", "repayment of service provider dues", etc. - they also advised me that proceeding claims can be denied, if the court figures that they should of fallen under a preliminary suit. My goal is to file multiple suits on them, with some potential hope that they decide not to (or can't) show on one of the suits, which may result in a default judgement. They owe the money to me & they know this, so I am trying to stack my own odds in this regard. They have limited transportation, so there is a possibility they could fail to show to court.

What I paid (with evidence or lack thereof):

I have loaned someone on a verbal agreement, money that was sent via Walmart Money orders (3) to them while they were on vacation in Puerto Rico. Their name is cited on the recipient end, as well as my name cited as the sender. I purchased their plane ticket via debit card that belonged to my name. They were the designated passenger per the flight, on the ticket.

I also loaned this person money to cover internet services and cable services to their previous address, in which they are on file for the lease as the designated residence. Both service providers have the individual on the account as a "co-operator" and collections are obligated to pursue them just as equally as myself (I had this convo with their customer service).

I paid for this person's security deposit and $300 prorated rent for the residence they currently reside in. The deposit was paid in cash, they signed their receipt, but the landlord is willing to testify that I paid the deposit for the occupant, and that they simply signed.

Questions:

For all of the above, should I only pursue a single suit, or multiple separate suits for different "reasons" - what is the best or only approach? This person has a protective order on me, but I have already cleared the intent of suit past the judge (the judge gave me a go-ahead). They are all unpaid loans (unfortunately all verbal agreements). The only thing I have evidence wise, is the timing and locations to which money was sent, but that does not disprove the money being regarded as a "gift". I'm banking on testimony for this mainly, as I know that's my only real ground.

This person may or may not have enough money to retain a lawyer. They were supposed to receive a large SSI payment in March, but I do not know where that sits currently. Can I be subjected to covering this person's attorney fees if I do not win?

 

[army judge]

Hi,

I would like to file a small claims suit on an individual. I have a few questions below:

I spoke with the county court & they advised me that I can and possibly should file several separate suits for the different types of financial "claims" made, such as "repayment of personal loan", "repayment of service provider dues", etc. - they also advised me that proceeding claims can be denied, if the court figures that they should of fallen under a preliminary suit. My goal is to file multiple suits on them, with some potential hope that they decide not to (or can't) show on one of the suits, which may result in a default judgement. They owe the money to me & they know this, so I am trying to stack my own odds in this regard. They have limited transportation, so there is a possibility they could fail to show to court.

What I paid (with evidence or lack thereof):

I have loaned someone on a verbal agreement, money that was sent via Walmart Money orders (3) to them while they were on vacation in Puerto Rico. Their name is cited on the recipient end, as well as my name cited as the sender. I purchased their plane ticket via debit card that belonged to my name. They were the designated passenger per the flight, on the ticket.

I also loaned this person money to cover internet services and cable services to their previous address, in which they are on file for the lease as the designated residence. Both service providers have the individual on the account as a "co-operator" and collections are obligated to pursue them just as equally as myself (I had this convo with their customer service).

I paid for this person's security deposit and $300 prorated rent for the residence they currently reside in. The deposit was paid in cash, they signed their receipt, but the landlord is willing to testify that I paid the deposit for the occupant, and that they simply signed.

Questions:

For all of the above, should I only pursue a single suit, or multiple separate suits for different "reasons" - what is the best or only approach? This person has a protective order on me, but I have already cleared the intent of suit past the judge (the judge gave me a go-ahead). They are all unpaid loans (unfortunately all verbal agreements). The only thing I have evidence wise, is the timing and locations to which money was sent, but that does not disprove the money being regarded as a "gift". I'm banking on testimony for this mainly, as I know that's my only real ground.

This person may or may not have enough money to retain a lawyer. They were supposed to receive a large SSI payment in March, but I do not know where that sits currently. Can I be subjected to covering this person's attorney fees if I do not win?

SSI income is generally bullet proof as far as lawsuits go, especially small claims lawsuits.
You do know that even if you prevail in small claims, you only get apiece of paper with a pretty seal.
Then you have to seek assets that a judgment can attach.
Generally creditors can't touch Social Security benefits, the government on the other hand can pursue collecting on a debt owed to the people.
Otherwise, SSI funds are off limits from attachment.
Plus, don't expect the defendant to tell a story that in anyway coincides with what your recollection of events might be.
That is to say, absent any other PROOF (written evidence of a loan, as in PROMISSORY notes OR witnesses to corroborate your version of events who were there and heard the loan discussed) you have no case.
You most assuredly can go ahead and sue, and yes, you could end up paying the defendant's court costs.
Furthermore, if you have a restraining order against you, suing the object of the restraining order often works against you.
Yes, a court action doesn't violate the order, but some judges see a lawsuit under these circumstances as a way for someone to POKE the bull, if you will.

 

[Michael Wechsler]

If the total amount of all transactions is under the limit of the small claims court, there is no reason to file multiple claims. It's just additional expense and the hassle of potentially having to go to court multiple times. There is no guarantee that your small claims lawsuit will be heard on one date. In addition, as was apparently told to you, the court may consolidate all the claims anyway.

You may want to file just to obtain a judgment and see where it goes. But as they say, you can't get blood from a stone. Perhaps they promised you a payment from their SSI income. It doesn't mean that you'll see it or be able to attach a judgment against their checks, as army judge stated. For the most part, you'll probably need to go hunting for their assets if they don't have them.

Generally from my knowledge and experience, money loaned to another person is not presumed to be a gift, especially when the circumstances don't dictate that the money would suggest a gift. There have to be circumstances surrounding the transfer of money to suggest it was a gift, which is a defense that the defendant may raise. Generally if there was a date when the money was to be paid, you have a loan. The mistake many make is having an uncertain date, e.g. "when you can" which further complicates the matter where it then becomes pure credibility, especially in small claims courts that I have witnessed. In this case, the payment date seems to have been from the SSI check that was supposed to arrive. While it is not a definite date it is payable on the occurrence of a specific event which is expected to occur no later than a certain date. I don't think that the money transfer will be assumed to be a gift -- but this is just my own speculation, not legal advice (as there is no appropriate legal consultation.)

Attorneys fees are almost never awarded absent special circumstances and even more rarely in a small claims court case - where the defendant doesn't even appear to have the funds to retain an attorney. I would certainly not worry about that at all even though the possibility exists. Good luck with your case.

 

[JoeyBloeySmoey]

If the total amount of all transactions is under the limit of the small claims court, there is no reason to file multiple claims. It's just additional expense and the hassle of potentially having to go to court multiple times. There is no guarantee that your small claims lawsuit will be heard on one date. In addition, as was apparently told to you, the court may consolidate all the claims anyway.

Are you saying if multiple are filed, they would not be heard on the same date? This would be my intent, as I would want the defendant obligated to show on multiple dates, in hopes that they cannot or decide not to show to court. A single instance they will show up for sure, but if I create multiple appearances they may not show - this is their personality as I know them.

As far as consolidation, what if I were to file suit, wait until a verdict is found, then file another suit? This is what I mean - I was told the courts can deny proceeding suits if you follow this mode of operation, as they can see follow up suits as falling under grounds of a previous suit, thus denying it.

You may want to file just to obtain a judgment and see where it goes. But as they say, you can't get blood from a stone. Perhaps they promised you a payment from their SSI income. It doesn't mean that you'll see it or be able to attach a judgment against their checks, as army judge stated. For the most part, you'll probably need to go hunting for their assets if they don't have them.

They will be purchasing an automobile in the future with their SSI settlement. If I establish a judgement now, before they obtain a car, can collections/myself pursue their automobile once they acquire it? Given I win of course...

Generally from my knowledge and experience, money loaned to another person is not presumed to be a gift, especially when the circumstances don't dictate that the money would suggest a gift. There have to be circumstances surrounding the transfer of money to suggest it was a gift, which is a defense that the defendant may raise. Generally if there was a date when the money was to be paid, you have a loan. The mistake many make is having an uncertain date, e.g. "when you can" which further complicates the matter where it then becomes pure credibility, especially in small claims courts that I have witnessed. In this case, the payment date seems to have been from the SSI check that was supposed to arrive. While it is not a definite date it is payable on the occurrence of a specific event which is expected to occur no later than a certain date. I don't think that the money transfer will be assumed to be a gift -- but this is just my own speculation, not legal advice (as there is no appropriate legal consultation.)

Are you saying money transfer in regards to the money orders? There are other money transfers that took place, but it was not in the form of money orders. There should be no presumed reason for a gift, as we did not have a relationship outside that of a generic friendship. Police tried to get us both to obtain a civil restraining order, but neither of us could, due to the fact we have no relationship within the confines of what's cited and allowable in regards to obtaining a civil restraining order.

Also another question - can I cross examine the defendant in Upstate NY (Rochester City) / Small Claims Court? If I cross examine them and I can prove they committed perjury, can I file for perjury charges, although it's a civil case?

 

[Michael Wechsler]

Are you saying if multiple are filed, they would not be heard on the same date? This would be my intent, as I would want the defendant obligated to show on multiple dates, in hopes that they cannot or decide not to show to court. A single instance they will show up for sure, but if I create multiple appearances they may not show - this is their personality as I know them.

There is no guarantee. Frequently they are on the same date if you file them together but it is not guaranteed. It's possible that they may even schedule some for one day and the remaining for the next. They are all technically separate actions.

As far as consolidation, what if I were to file suit, wait until a verdict is found, then file another suit? This is what I mean - I was told the courts can deny proceeding suits if you follow this mode of operation, as they can see follow up suits as falling under grounds of a previous suit, thus denying it.

I don't know the rules of the specific small claims court you are in. You're better off reviewing them just to be sure of your options and the best way to proceed. If there isn't a separation of money, date of transaction, etc. then I can see the court believing that they are the same transaction and you are simply trying to circumvent the court's jurisdictional limitations. Now if the person called you on Day 1 and you sent money. Called you on Day 2 for more money and sent money, those are two transactions even though they relate to the same parties and reason for asking for the money.

They will be purchasing an automobile in the future with their SSI settlement. If I establish a judgement now, before they obtain a car, can collections/myself pursue their automobile once they acquire it? Given I win of course...

All of these possibilities are complicated and very costly. You may end up with a judgment to hang over their head which will guarantee they will have difficulty ever getting credit. You're better off sending a demand letter first, certified mail, which will warn them that you're serious (and you will have to make a formal demand anyway.)

Are you saying money transfer in regards to the money orders? There are other money transfers that took place, but it was not in the form of money orders. There should be no presumed reason for a gift, as we did not have a relationship outside that of a generic friendship. Police tried to get us both to obtain a civil restraining order, but neither of us could, due to the fact we have no relationship within the confines of what's cited and allowable in regards to obtaining a civil restraining order.

Not sure I understand what type of restraining order you'd both need or want. And now the situation is becoming more complicated with multiple types of payments, etc. You can try and Small Claims Court is supposed to be lenient. If there is no reason to avoid the jurisdictional limit and file together I see no reason to file separately and cause yourself far more work and expense.

 

[army judge]

Joey, I don't want to rain on your parade, but I'm sure you don't want me to blow smoke, either.
So, I'm going to add a little more substance to any small claims lawsuit.


Just because you have a judgment doesn't mean you can snatch (or get the constable, marshal, or sheriff to snatch) the stuff of the losing defendant.
For instance, most savvy people don't title things in their names, but even if they do, some stuff is exempt from being snatched.

The New York small claims court limit is $5,000.
In some towns the small claims maximum is only $3,000.
This means that the maximum you can sue for in New York are these limits and if your dispute exceeds these amounts you cannot sue in small claims or will need to lower your claim or file in a higher court.

If you and Bob have various money amounts in dispute, let's say they are as follows: $1,500; $2,000; and $3,500; for a total of $7,000 in dispute.
You can't initiate three separate lawsuits to avoid the small claims limit of $5,000.
You can try, but when you do, the judge will consolidate the cases for judicial economy and to comply with the law.

Your option is to then sue in NY Supreme Court.


Guidance on small claims in general:

http://www.nypirg.org/consumer/smallclaims/fivesteps.html

http://www.ag.ny.gov/sites/default/files/pdfs/publications/smallclaims.pdf

https://labor.ny.gov/formsdocs/wp/LS602.PDF

Let's say you prevail and get a judgment for $5,000.

One motor vehicle exempt if its unencumbered up to $4,000 in value, or up to $10,000 if the vehicle has been equipped for use by a disabled debtor (this exemption does not apply if debt is for child or other support, or if the collector is the State, its agencies or municipal corporations.

If a car has a lien against it by a bank, it can't be snatched, either.



This is what NY law exempts from being snatched:


http://nahoumlaw.com/what-property-is-exempt-from-debt-collection/


http://www.empirejustice.org/issue-...sues/articles/new-york-states-exemptions.html

 

[JoeyBloeySmoey]

Joey, I don't want to rain on your parade, but I'm sure you don't want me to blow smoke, either.
So, I'm going to add a little more substance to any small claims lawsuit.


Just because you have a judgment doesn't mean you can snatch (or get the constable, marshal, or sheriff to snatch) the stuff of the losing defendant.
For instance, most savvy people don't title things in their names, but even if they do, some stuff is exempt from being snatched.

The New York small claims court limit is $5,000.
In some towns the small claims maximum is only $3,000.
This means that the maximum you can sue for in New York are these limits and if your dispute exceeds these amounts you cannot sue in small claims or will need to lower your claim or file in a higher court.

If you and Bob have various money amounts in dispute, let's say they are as follows: $1,500; $2,000; and $3,500; for a total of $7,000 in dispute.
You can't initiate three separate lawsuits to avoid the small claims limit of $5,000.
You can try, but when you do, the judge will consolidate the cases for judicial economy and to comply with the law.

Your option is to then sue in NY Supreme Court.

Let's say you prevail and get a judgment for $5,000.

One motor vehicle exempt if its unencumbered up to $4,000 in value, or up to $10,000 if the vehicle has been equipped for use by a disabled debtor (this exemption does not apply if debt is for child or other support, or if the collector is the State, its agencies or municipal corporations.

If a car has a lien against it by a bank, it can't be snatched, either.

If I filed multiple suits, they would all be under $5,000 (which is the limit in my jurisdiction). My goal with the separation of suits is to provide a burden to the defendant in regards to actually showing up to court. They have limited transportation & their medical issues are often a cause for them to "not feel like doing anything", including going to court - I have witnessed them ignore court before.

Ok, much appreciated on the info there. I would still like to pursue them to cause at very least a burden to them, if I cannot actually recoup my money (atleast for now). They caused quite the hassle for me with the legal system through false reporting/evidence, so if I can place a burden over them that follows them like a gray cloud, that is a good enough first step. They intend to get work in the future, potentially in New York State. Although I'm not sure how one goes onto SSI due to multiple body & mind based illnesses (some of which are not curable), then decides they can work 10 years later. Not sure how that isn't SSI fraud...

Is it possible to setup a perjury trap & pursue them for perjury, although this is a civil case? How would that transpire? I was told the DA barely pursues perjury to begin with, but they may commit substantiated perjury during the trial, so I am wondering.

 

[JoeyBloeySmoey]

There is no guarantee. Frequently they are on the same date if you file them together but it is not guaranteed. It's possible that they may even schedule some for one day and the remaining for the next. They are all technically separate actions.


I don't know the rules of the specific small claims court you are in. You're better off reviewing them just to be sure of your options and the best way to proceed. If there isn't a separation of money, date of transaction, etc. then I can see the court believing that they are the same transaction and you are simply trying to circumvent the court's jurisdictional limitations. Now if the person called you on Day 1 and you sent money. Called you on Day 2 for more money and sent money, those are two transactions even though they relate to the same parties and reason for asking for the money.


All of these possibilities are complicated and very costly. You may end up with a judgment to hang over their head which will guarantee they will have difficulty ever getting credit. You're better off sending a demand letter first, certified mail, which will warn them that you're serious (and you will have to make a formal demand anyway.)


Not sure I understand what type of restraining order you'd both need or want. And now the situation is becoming more complicated with multiple types of payments, etc. You can try and Small Claims Court is supposed to be lenient. If there is no reason to avoid the jurisdictional limit and file together I see no reason to file separately and cause yourself far more work and expense.

I don't believe I can send a demand letter, because it would violate the criminal order of protection they placed on me. I won't hire a lawyer because the amount doesn't warrant hiring on. On paper they owe me about $2750

 

[army judge]

I don't believe I can send a demand letter, because it would violate the criminal order of protection they placed on me. I won't hire a lawyer because the amount doesn't warrant hiring on. On paper they owe me about $2750

You say THEY, does that mean more than one person received the benefit of the money?
If so, it'll be two (or more) against ONE, you my friend.
If THEY keep their stories straight, things will go their way.

 

[Michael Wechsler]

I don't believe I can send a demand letter, because it would violate the criminal order of protection they placed on me. I won't hire a lawyer because the amount doesn't warrant hiring on. On paper they owe me about $2750

Of course you can send a demand letter. If they owe you money as per an agreement, you can send a letter making a demand for payment stating the terms of the agreement and a date when the money must be paid.

As to the criminal order of protection.... there is clearly something we are not seeing here. This is a bit out of control if you ask me. All this talk about perjury traps, getting them to default. Honestly... this sounds like some type of scheme that was devised and seems to have backfired. I'm not even sure why you'd send these people almost $3,000 with whom you don't seem to have a great trust relationship. Chances are that even if you get a judgment, it doesn't seem like they are pulling out the checkbook to hand it over to you.

I've done these things before but it's not easy. You would need to make a demand for payment after judgment. Then you'd probably need to send an information subpoena with restraining order, which you'll likely need the court's assistance. Hopefully you'll send it to banks where you guess they bank and there may be money you can freeze and move. And if its SSI/SSD payments in a special bank account, then you're in trouble. Doesn't matter what they end up doing with the money. It's your trouble to find and then get court orders to seize what can legally be seized.

Go ahead and file a small claim for the $3,000. Unless these are really 3 different transactions, the court will probably see through the tactic and decide it may be harassment. Good luck with your efforts and case.

 

[JoeyBloeySmoey]

Of course you can send a demand letter. If they owe you money as per an agreement, you can send a letter making a demand for payment stating the terms of the agreement and a date when the money must be paid.

As to the criminal order of protection.... there is clearly something we are not seeing here. This is a bit out of control if you ask me. All this talk about perjury traps, getting them to default. Honestly... this sounds like some type of scheme that was devised and seems to have backfired. I'm not even sure why you'd send these people almost $3,000 with whom you don't seem to have a great trust relationship. Chances are that even if you get a judgment, it doesn't seem like they are pulling out the checkbook to hand it over to you.

I've done these things before but it's not easy. You would need to make a demand for payment after judgment. Then you'd probably need to send an information subpoena with restraining order, which you'll likely need the court's assistance. Hopefully you'll send it to banks where you guess they bank and there may be money you can freeze and move. And if its SSI/SSD payments in a special bank account, then you're in trouble. Doesn't matter what they end up doing with the money. It's your trouble to find and then get court orders to seize what can legally be seized.

Go ahead and file a small claim for the $3,000. Unless these are really 3 different transactions, the court will probably see through the tactic and decide it may be harassment. Good luck with your efforts and case.

There is no real scheme - rather it's me just seeing the available options for me to serve proper justice in regards to money owed & potential criminal charges against them for committing crimes against me. This person appeared to be very trustworthy, then devised a spur of the moment trap in which they filed many false police reports against me in order to keep me away from them, so that they did not have to discuss repayment. They filed 7 false police reports against me. 2 originated charges, of which I pled guilty to in order to clear liability due to the compounding effect (courts stacked the charges & case). They had a team of fake witnesses to boot.

This person committed N.Y. PEN. LAW § 215.40 against me (3+ counts) as well as N.Y. PEN. LAW § 175.30 (3+ counts) (I believe - they offered a false written instrument which became part of a public servant's records). This is why I seek a perjury trap - to serve proper justice (that's what the justice system is for, correct?) I spoke with my attorney about setting up a perjury trap at trial for the criminal charges they issued on me, but was informed the DA likely would not pursue perjury. I was facing testimony-based liability with fake witnesses working against me, and the trial served me no purpose to endure given my circumstances of the case, so I did not attempt a perjury trap at this point. The trade-off was not weighted in my favor, so I made the best "tactical" decision at the time.

 

[JoeyBloeySmoey]

You say THEY, does that mean more than one person received the benefit of the money?
If so, it'll be two (or more) against ONE, you my friend.
If THEY keep their stories straight, things will go their way.

Just a single person received. I am almost certain I can trap them in a lie regarding 1-2 of the payment issues, but I do not know the circumstances surrounding perjury in a civil case.