11/16/2001

Small Claims Debacles - Part 2

The letters continue to flow in, not only about disappointing results in Connecticut Small Claims Court, but also about some successes, how those successes were achieved and what steps should be taken to improve things for the person who needs resolution of his or her claim (under $3,000) WITHOUT hiring expensive legal representation! (Part 1 is here.)

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Dear Beth,

Here's my experience with the court:

I contracted with a person to build a deck. (Big ad in the yellow pages). He duly arrived and installed the concrete footings for which I paid him on the spot.

I had a drawing and list of materials. He volunteered to pick up the materials for completing the job. I gave him a check to cover the cost. I never saw him after that. Anyway, I went to small claims and paid my $30 fee. I had also called Connecticut Consumer Protection. They had no record of other complaints but were unable to do anything meaningful until it went to court.

The state sent claims and notices to the defendant, but he never responded. I had my day in court and won the case, but he never paid up. When all steps to get him to pay were exhausted, I went back to the consumer protection people who told me the state would reimburse the full amount plus court fee upon receipt of a certified copy of the court's judgment. I sent the copy and received a check from the state for the full amount.

Apparently, the state will not renew the contractor's license until he pays the state back. I think there's a limit of $15,000 the state will reimburse.

The only way to deal with the bureaucracy is to be persistent, persistent, persistent!

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The small claims system in any state is limited by both the state and federal constitutions. (Most state constitutions follow the Federal.) It is a waste of time to sue a person in Small Claims Court unless you know the person you are suing has a job or a bank account. One positive note: a judgment remains against the person the rest of his life; there is no statute of limitations on the judgment.

However, here is another case of how the Constitution helps the common debtor. Say John owes Mary $1,000 and refuses to pay her. Mary pays her $30 and files an action in Small Claims Court. The Constitution states that anyone who owes more than $10 is entitled to be judged by a "Jury of their peers." Small Claims Courts have no juries. So John goes to the Small Claims Court and fills out a bunch of forms. He claims he is indigent, so the Court waives the transfer and jury fees. The case is then transferred to the regular docket of the Superior Court. THIS IS AUTOMATIC! Mary can do nothing to stop this. Now this case is no longer in the Small Claims Court and Mary must have a lawyer (or be one) to try a case in Superior Court. A few have tried to represent themselves (called "pro se"). Few have succeeded. The courts are designed for lawyers, not pro-se plaintiffs.

There are only two solutions to the Small Claims Court problems:

• Rewrite the Constitution.
• Do not extend credit or loan money to anyone.

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I have two stories related to the Connecticut court system. These are true and have left me bitter.

10 years ago I successfully sued a company in small claims court. It was only for a few hundred dollars but the company refused to pay. Trying to collect the money would have cost more than I was owed, so I eventually gave up.

Recently I had a small claims judgment against me. A hospital incorrectly billed my Insurance company. The bill was corrected, resubmitted and paid. In the meantime I was sued. I never received anything from the court about this case. I only received the paper saying that there was a judgment against me. They immediately placed a lien on my house. I thought I was supposed to get a court hearing!

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Over the years, I have made use of the small claims system in Connecticut.

Years ago, a judge handled the cases and one could expect a reasonably sound and equitable judgment predicated on the facts of the case. Some years ago, however, the state of CT removed the small claims docket from the bench of a judge and placed it in the hands of a magistrate. My experience with the magistrate system has not been positive. The magistrate is faced with a huge docket of cases, so the magistrate's interest is in settling the case, often putting pressure on the plaintiff to "forgive and forget" some of the funds that might be due and payable, in the interests of settling up. My experience has been that the magistrate is not above bringing personal issues and biases to court and compelling one side or the other to pay the price for those biases. This, combined with the strong pressure to settle up before one's case is heard, makes for the creation of a system of expediency rather than justice.

The existing small claims system requires some genuine reforming to make it work for the people who need it most. Perhaps some of the lawmakers in Connecticut (many of them attorneys) should try the system for themselves, without using their J.D. degree, but with the same rules, regulations and constraints that an ordinary "pro se" plaintiff must follow. That might lead to some positive action to streamline the system and make it more fair to all.

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I am wondering how you figure out who the victim is.

Here is what happened to my son. His pickup was hit by another driver, so he went to a local body shop for an estimate. The body shop owner ordered the parts without consent. I myself went to the body shop two days later and asked him to hold off on ordering any parts because we were going to look for a replacement bed on the pickup instead of having him fix the bottom of the bed that was damaged quite extensively. I told the owner that we would have him install the bed and paint it.

He went ahead and ordered the parts, without a signature from my son. (This from the same man who told me four years earlier that you could have your car fixed wherever you like, no matter where you had the estimate done.) My son had his truck fixed somewhere else.

The body shop owner who gave my son the original estimate took him to small claims court to recover the cost of the parts, saying he could not return them, a claim that is untrue. My son lost the case, even though there was no paperwork or signature authorizing the man to order the parts. Total cost: $2400. In addition, the judge ruled that the shop owner did not have to give the parts to my son so he could recoup some of his money.

The amazing thing is that this body shop owner had three cases for the same reason in court that morning and won all of them. So who turns out to be the victim in this one?

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We had one small claims court experience ... and almost went for two ... but changed out minds. Our first experience was when a "shady" fencing contractor put up our fence, shoddily using cheap, lousy materials...not the "lst Quality" we were promised. When the fencing job was done and paid for, he hit us up for an extra $200, because he had trouble digging the post holes. We argued with him; he harassed us by phone; it was a nightmare!

Suddenly we received a summons to small claims court by this contractor. We had appear in court, so my husband lost most of a full day's pay, since we had to sit and sit and sit through other cases the magistrate had to officiate over. We came fully armed with pictures of the shoddy workmanship and low grade fencing materials. The fencing man didn't show up. We won the case, all right.. we didn't have to pay him the $200 ... but my husband lost 1/2 day's pay! To countersue for the shoddy materials would have meant another day in Small Claims with the same results, I am sure, so we chalked that incident up to one BAD decision in who to hire for a fence job, and lived with the cheap fencing!

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I had a similar experience in California. It's universal! It is the nature of thieves to flout the law. That is why they are called thieves and are supposed to be excluded from polite society. However, in some respects, do we encourage them? If we do, are we as bad as they are? It all starts with us. Do we quietly cheer for someone who has pulled a fast one? Do we take a little bit extra, when nobody is looking? Do we give back pens that we borrow, or do we stick them in our pockets? Do we borrow office supplies (or time ) from our employers? As a very wise man said, many, many years ago, "Let he who has no sin, cast the first stone." A court system is only as good as the lowest common denominator in society. To lift a society, we must first lift ourselves.

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I think you are a little too cynical of the Small Claims Court. I have collected from a fortune 500 who ignored my request to honor its guarantee. They actually showed up in court over $350. I won; they paid. David defeats Goliath at a bargain price! Look at the alternative costs for collecting, if it weren't for Small Claims.

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Small claims is a travesty to justice. The system just makes it official as to whether a bill is considered a legal obligation, or not. To get better results you have to do your homework before you go to court. As a former skip tracer and investigator for the government, you need to research the tangible assets of what this person is worth. If you can't secure payment at the time of the transaction, or the end of the transaction , and it looks like a credit might have to be extended, you need to conduct research into said person's history.

A credit bureau is one way. Others are: Checking at the town hall where said person lives for record of assets, checking the day lists plus all volumes of any real estate, personal property, or other assets that are under seizure from any bank, creditor, or the IRS. Criminal records are another way to determine character references as to credit worthiness. If the stiff owns real estate, and if you can secure such obligation by means of a 2nd or 3rd lien holder, you just have to pay off lien holders in front of you and foreclose on the real estate. In Connecticut, any party who forecloses on any property doesn't have to pay the stiff any equity that might apply to the real estate. The creditor gets to keep all equity to satisfy a bill. That's why foreclosures are numerous in CT.

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I must be the only person who responded with a positive experience at small claims court. We were moving from an apartment, where we had lived in for 7 years. We left it clean and orderly. While moving I fell off the back steps, which were icy, and hurt my back. I rolled in the snow for a while (while my husband laughed)! I received a call from the landlord a few days later that he wasn't going to return my deposit because there was damage to one of the bedroom rugs. The damage was caused when we had the tornado. So I took him to small claims court to recover my deposit, about $1,000.

He countersued over the damage to the carpet. It really was a hoot listening to him explain that he didn't remember the tornado! The magistrate ruled in my favor for the return of my deposit. I then sued him for $3,500 for falling off his porch. He lost that one too!

You just can't be intimidated by the likes of some people. He no longer speaks to me, which is fine with me.

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Note from Beth Bruno: Sometimes it works best to take action on one's own behalf BEFORE turning to the courts for a resolution. At least, that's what worked best in a situation I had to deal with.

We once owned a small apartment house in another state. When student tenants trashed one of the apartments, I contacted their parents, providing them with specific descriptions of what their sons had destroyed. The parents took care of the situation completely. That apartment was in perfect condition after the parents made it clear to their sons what would happen to them (I guess) if they didn't repair everything and leave the place spotless - which they did. There is, in some instances, a way to deal with dishonest people and reverse their behavior if you're willing to address it personally, directly and head-on -- without violence or threats.

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Alternate dispute resolution works. Creativity in responding to such events is a wonderful approach. What I object to in Mr. Lepore's article is the concept that the state was somehow complicit with the non-payer or that the state is at fault when defendants don't pay what they owe, after a judgment has been made against them.

Lawyers deal with "the system" and its frustrations everyday, whether it's the municipal permit process, planning and zoning, small claims, divorce settlements, criminal and traffic court or whatever, plus dealing with their client's shock, dismay and complaints at how the "system" works. People have bank accounts; they own property like houses and cars; they have jobs with paychecks. (In your case, they had well-meaning parents one might complain to. Judgment liens can be filed on real estate; bank accounts can be attached and drained; wages can be garnished.

These things are done, and judgments are fully or partially recovered everyday, while some are not. Trying to get at these assets can be difficult for average citizens representing themselves in a small claims action and often even for experienced lawyers who know what they are doing. Lawyers and other collectors charge for their services in pursuing these assets, and sometimes the size of the debt does not warrant paying someone to collect it. Your student tenants are a prime example.

But I am responding to this idea that "I got beat in a business transaction and then the state ripped me off and wasted my time". If a judgment debtor has no assets to pursue, or worth pursuing, then they are truly "judgment proof". No amount of effort may result in getting paid. This too is not the state's fault, the court's fault or the lawyer's fault.

People often fail to take sufficient precautions in advance of a transaction. For example, they use an insufficient lease form, or no lease at all. They may fail to collect a security deposit. Or they hand write some kind of agreement when they lend money or provide goods and services. Frankly, some individuals won't pay to have a proper document prepared or to have a debt collected, and they suffer for it when they take a loss.

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I'm a landlord and have taken deadbeat tenants to court many times in the past. I have won every case. To this day, after 10 years of winning judgments against them, I have yet to collect a penny. "IF" this court system is going to work, it needs more teeth.

I have learned to just "Pay Off" a tenant to leave under his/her own accord by a set time doing no further damage. Would you believe I save money doing it that way? I use the tenants greed and actually come out ahead.

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I just recently had to take my landlord to small claims court. There was a robbery from my apartment by someone using a master key to gain entry. It was very obvious what happened (even the police agreed with me). When I confronted the management company, they said they would look into it and get back to me. That was in March of 2000. I'm still waiting.

I decided to take them to small claims court to re-coup the amount not paid to me by my insurance. Even though I had a copy of the police report, along with other evidence to support my claim, I was told by the judge that I didn't have enough evidence to hold them liable for negligence and carelessness. To make matters worse, I had to hire a lawyer just before the small claim case was heard because the management company tried to have me evicted! I was able to have the court dismiss that motion, but it still cost me time and money.

That something needs to be done about the whole systems is obvious. What that something is, needs to be discussed by a diverse group of people that includes "real" citizens, so the right perspective is achieved.

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Going to traffic court was an enlightening experience for me. I had a traffic ticket that I felt was unjust. I took a day off from work and arrived promptly at 1 p.m. and stood in line with over a hundred other people, since seats were not available. I felt like one of a herd of cattle. After an hour and a half of standing, the bailiff called me into a small office.

Inside the office, where 10 other people were milling around, a women introduced herself. (I think she was an assistant prosecutor, but maybe she was his secretary). She asked me if I had any prior traffic violations in the last year. I answered, no. She said that since I didn't the state would be willing to nolle the case for a $35 donation to the United Way. I protested. I had come to court because I was innocent of the charges and wanted to state my case. "You can't do that here," she explained.

She conferred with a man sitting at a desk. They said they could squeeze me in for a court appearance sometime in November. Silly me, I had thought this WAS the day of my court appearance. Quickly, I did the math. $35 to the United Way or another day lost from work? I paid the $35 extortion and left/

That's justice at traffic court.

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I have had good luck with Small Claims Court. I have always won my cases and collected, including the Small Claims filing fee. It wasn't necessarily easy, but if you win your case you can go to the Motor Vehicle Department and have the defendant's registration and license tagged as unrenewable. Granted it takes time, but most people pay up immediately. I'm a small female and have encountered others who thought they could take advantage of me without penalty. What they didn't realize was that I'm just waiting for opportunities to strike back at those who think they can get away with wrongdoing.

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Please send questions or comments to bbruno@snet.net.