Default Judgment Denied without Prejudice

[ForestFairy]

Hi. :seeya: I am new here, and hope someone can answer my question.

I sell cosmetics. One woman bought a ton of make-up from me. I gave it to her, and she promised to pay me the following week, when she got her paycheck. She lives in a big house, drives a new car, etc, so I truly expected to get paid. However, she didn't pay me, or return my calls when I asked for payment. I filed a small claims lawsuit against her. She did not appear in court, so a default judgment was entered.

Then today I got in the mail papers stating my "default judgment was denied without prejudice", because I did not provide proof she's not on active military service.

Can I refile this judgment? Is the fact that I see her driving around town, and at the grocery store enough proof? Can I submit her Facebook pages with pictures of her hanging out at the country club?
I am very upset, because her $500 of make-up came out of my pocket!:cursing:

Any advice would be greatly appreciated as I never did this before.

[Krystal]

I hope Jay sees this. He knows a lot of legal stuff and was very helpful to me!:thumbup:

[bearwds]

Hi. :seeya: I am new here, and hope someone can answer my question.

I sell cosmetics. One woman bought a ton of make-up from me. I gave it to her, and she promised to pay me the following week, when she got her paycheck. She lives in a big house, drives a new car, etc, so I truly expected to get paid. However, she didn't pay me, or return my calls when I asked for payment. I filed a small claims lawsuit against her. She did not appear in court, so a default judgment was entered.

Then today I got in the mail papers stating my "default judgment was denied without prejudice", because I did not provide proof she's not on active military service.

Can I refile this judgment? Is the fact that I see her driving around town, and at the grocery store enough proof? Can I submit her Facebook pages with pictures of her hanging out at the country club?
I am very upset, because her $500 of make-up came out of my pocket!:cursing:

Any advice would be greatly appreciated as I never did this before.

****************************

W.W.J.J.D. ..??

What would Judge Judy do..??

First she would probably chastise you for not having a written contract stating terms and letting payment due date be vague. (payday)

Dismissed without prejudice means you can refile within statute of limitations. Why judge required proof of a negative is beyond me. Why not require you to prove that she isn't a frogman..??

Facebook or other social pages won't substantiate that she owes you money so that would seem to be worthless.

----->>taking off JJ's robe ..What would you do different next time..??


bear

[ForestFairy]

****************************

W.W.J.J.D. ..??

What would Judge Judy do..??

First she would probably chastise you for not having a written contract stating terms and letting payment due date be vague. (payday)

Dismissed without prejudice means you can refile within statute of limitations. Why judge required proof of a negative is beyond me. Why not require you to prove that she isn't a frogman..??

Facebook or other social pages won't substantiate that she owes you money so that would seem to be worthless.

----->>taking off JJ's robe ..What would you do different next time..??


bear

The judge accepts that she owes me money. I just have to provide "evidence" that she's not on active military duty.

I thought the Facebook pages could be helpful. They're dated and show her playing tennis and drinking by the pool.

Apparently, some people have been entering bogus default judgments against people away in the military. They come back and a court officer has raided their account!:ohmy:

[Jay]

Hi. :seeya: I am new here, and hope someone can answer my question.

I sell cosmetics. One woman bought a ton of make-up from me. I gave it to her, and she promised to pay me the following week, when she got her paycheck. She lives in a big house, drives a new car, etc, so I truly expected to get paid. However, she didn't pay me, or return my calls when I asked for payment. I filed a small claims lawsuit against her. She did not appear in court, so a default judgment was entered.

If she appeared, do you think she would have admitted she owed you the money??

Then today I got in the mail papers stating my "default judgment was denied without prejudice", because I did not provide proof she's not on active military service.

I do not know why the court is insistent on this? Was there something in your suit/affidavit to indicate she IS in the military or active duty?

Civil relief to a person who is on active duty is part of federal law, just as you can not garnish a service person's salary.


http://usmilitary.about.com/od/sscra/l/blsscra3.htm

As you stated in your last post:

....Apparently, some people have been entering bogus default judgments against people away in the military. They come back and a court officer has raided their account!..



Can I refile this judgment? Is the fact that I see her driving around town, and at the grocery store enough proof? Can I submit her Facebook pages with pictures of her hanging out at the country club?
I am very upset, because her $500 of make-up came out of my pocket!:cursing:

As Bear indicates, yes, you can refile within the Statute of limitations, which I don't know your state, but it may be 2-5 years (??), as this is a simple breach of oral contract issue.

See what your state is here, it is "probably" still accurate:


http://www.fair-debt-collection.com/SOL-by-State.html


The pictures can be submitted, yes, that in and of itself may not be enough proof though. Keep gathering piece by piece evidence. Immediate rush is not important.

I was never in the military, so sorry, I don't know how to find out if a person is.

Hope this helps! I am not a lawyer, so take it for what it's worth.

[Jay]

I hope Jay sees this. He knows a lot of legal stuff and was very helpful to me!:thumbup:



Oh, by the way, that is very kind of you to say!! :smile:

[Krystal]

Oh, by the way, that is very kind of you to say!! :smile:

It's true!:wink:

[Jay]

It's true!:wink:


Ahhhhhh, gee whiz! :wub:

[Jay]

Oh FF, be sure to try to comply with the law there I linked about Civil relief, it outlines the route. This is the "proof" the court requires, pictures, etc., it also has a notation about if you have no proof.

[Krystal]

Wouldn't your eyewitness testimony be proof she's not in the military, and away? I mean if you see her locally and all. I think current Facebook pictures of her having cocktails by the pool at the country club, show she's not in Iraq. But I'm not a judge!

[Jay]

Wouldn't your eyewitness testimony be proof she's not in the military, and away? I mean if you see her locally and all. I think current Facebook pictures of her having cocktails by the pool at the country club, show she's not in Iraq. But I'm not a judge!


I would think so, unless one can find out she is not deployed somewhere either through the US Military or state NG, that is the only proof they could submit.


They may have been taken while on leave and she was redeployed?

She can gather bit by bit evidence and submit it. Unless the court requires proof from an actual government source, that is all a layman can come up with, bits and pieces.

[TealMermaid]

I think it's DISPICIBLE that she ripped you off for expensive make-up, but has money to belong to the country club, and drive a new car!!!:cursing:

[TealMermaid]

Wouldn't her having a current job be "evidence" she's not on active duty in the military?:confused:

[Jay]

Wouldn't her having a current job be "evidence" she's not on active duty in the military?:confused:


Yes, I sure would think so!

[R~O~S]

I think, Eagle1Fox2, the last comment on this page has your answer, an answer the judge won't be able to ignore:

http://answers.yahoo.com/question/index?qid=20080708215852AAhDppP

You'll need to know somebody in the service to get it, but apparently all branches of the service have a web site with a white pages listing of their members and it lists their duty status.

If she's not in the service, her name won't be on any of them. If she is, but she's not on an active duty status, she can't be deployed now can she. lol


The question was asked for a different reason, concerning active duty rather than deployed, but I think maybe this makes sense for you as a solution?

[ForestFairy]

Wouldn't her having a current job be "evidence" she's not on active duty in the military?:confused:

I don't know where she works. She ordered make-up from the catalog, I left in her mailbox.:confused:

[ForestFairy]

I think, Eagle1Fox2, the last comment on this page has your answer, an answer the judge won't be able to ignore:

http://answers.yahoo.com/question/index?qid=20080708215852AAhDppP

You'll need to know somebody in the service to get it, but apparently all branches of the service have a web site with a white pages listing of their members and it lists their duty status.

If she's not in the service, her name won't be on any of them. If she is, but she's not on an active duty status, she can't be deployed now can she.

The question was asked for a different reason, concerning active duty rather than deployed, but I think maybe this makes sense for you as a solution?

I don't know anybody currently in the Military.:huh:

[R~O~S]

I don't know anybody currently in the Military.:huh:

Now that's easy, go to your nearest sports arena and talk to the nice clean cut young man in the snappy uniform. Most stadiums, including minor league let the military in either free or at a discount, but they have to be in uniform.

OK, so you don't wanna do that? Go talk to the veterans agent at your town hall.

[ForestFairy]

Now that's easy, go to your nearest sports arena and talk to the nice clean cut young man in the snappy uniform. Most stadiums, including minor league let the military in either free or at a discount, but they have to be in uniform.

OK, so you don't wanna do that? Go talk to the veterans agent at your town hall.

And ask for proof this woman isn't on active duty in the military?

[R~O~S]

And ask for proof this woman isn't on active duty in the military?

The Veterans Agent can access those sites, for all branches. Yes, ask him to print out the white pages that would apply.

Tell him the story, he'll help you. If he's anything like the agents I know he'd go through a wall for a Vet, but don't even think about pretending you're one or using the armed services as an excuse for something illigitamate.


lol, me, I'd rather talk to the nice clean cut young man in the snappy uniform. Are you sure you want to go the easy safe route?

[Clara Harris]

Hi. :seeya: I am new here, and hope someone can answer my question.

I sell cosmetics. One woman bought a ton of make-up from me. I gave it to her, and she promised to pay me the following week, when she got her paycheck. She lives in a big house, drives a new car, etc, so I truly expected to get paid. However, she didn't pay me, or return my calls when I asked for payment. I filed a small claims lawsuit against her. She did not appear in court, so a default judgment was entered.

Then today I got in the mail papers stating my "default judgment was denied without prejudice", because I did not provide proof she's not on active military service.

Can I refile this judgment? Is the fact that I see her driving around town, and at the grocery store enough proof? Can I submit her Facebook pages with pictures of her hanging out at the country club?
I am very upset, because her $500 of make-up came out of my pocket!:cursing:

Any advice would be greatly appreciated as I never did this before.

Are you sure it means military service? Could it mean that you need to provide proof of service meaning you have to prove to the Courts that the def was personally served with the court papers to appear in court?

Did you appear in court? If so, were you told you were awarded judgment? Sorry snooty is ripping you off. Maybe her credit is maxed out and still wants it all. You might can check register of deeds office in your county and see if she has any general or specific liens against her or dh. If there is anything you can weigh your troubles to collect against what debt is already on record to be collected before you should you get judgment. Best wishes!

[sinagua]

Wait. You put $500.00 worth of cosmetics in her mailbox?

Did she order the cosmetics from you face to face?

Are you certain that she knows about this judgement against her? Was she served or was it mailed to her?

If she wanted to couldn't she just say "There was nothing in my mailbox."

You do know that you can't leave anything but mail in a mailbox, don't you? (Sorry, I don't mean to sound snippy.)

[ForestFairy]

Wait. You put $500.00 worth of cosmetics in her mailbox?

Did she order the cosmetics from you face to face?

Are you certain that she knows about this judgement against her? Was she served or was it mailed to her?

If she wanted to couldn't she just say "There was nothing in my mailbox."

You do know that you can't leave anything but mail in a mailbox, don't you? (Sorry, I don't mean to sound snippy.)

No, I put the catalog in her mailbox. I delivered all the make-up to her in person. She told me, she'd mail me a check when she got paid, but never paid me or returned my numerous calls. I have a copy of her bill for court. The court papers were served certified mail.

I will never leave merchandise with anyone without payment! I learned my lesson well.

[ForestFairy]

Are you sure it means military service? Could it mean that you need to provide proof of service meaning you have to prove to the Courts that the def was personally served with the court papers to appear in court?

Did you appear in court? If so, were you told you were awarded judgment? Sorry snooty is ripping you off. Maybe her credit is maxed out and still wants it all. You might can check register of deeds office in your county and see if she has any general or specific liens against her or dh. If there is anything you can weigh your troubles to collect against what debt is already on record to be collected before you should you get judgment. Best wishes!

Yes, it means proof she's not on active military service. I have all my certified mail receipts proving she was served.

Yes, I was at court.Yes, the judge told me a default judgment was entered, and to fill out the paperwork downstairs.

[desmom]

No, I put the catalog in her mailbox. I delivered all the make-up to her in person. She told me, she'd mail me a check when she got paid, but never paid me or returned my numerous calls. I have a copy of her bill for court. The court papers were served certified mail.

I will never leave merchandise with anyone without payment! I learned my lesson well.

Yikes. I hope you are able to get the $500.

Years ago a friend was a Home Interiors Rep. She was burned a couple times with the I will pay you next week. She went to a payment due when delivered policy. IOW, no payment, no delivery. She would hold the product for a customer, but they were not getting it until it was paid in full.

[Pretty Leaf]

I used to sell "regal" products when I was a stay at home mom looking for extra income. My mom's boss bought a few items, not much money, and her cheque bounced. That was a sticky situation. I told mom I would deal with her but mom said I have to work FOR her so mom paid it. I never let her order again.

She must have known it bounced with a NSF charge but she never acknowledged it or offer to make good on her order.

[gnm109]

The Soldiers' and Sailiors Relief Actof 1940 was amended in 2003 due to the large numbers or people who were engaged in active militrty service. Often, military service will impair either a person's ability to complete financial obligations or will affect one's ability to give them proper notice as required under the U.S. Constitution.

You say that the default judgment in the small claims action was denied without prejudice solely on the basis that proof had not been given that the plaintiff had exercised due diligence in determining whether or not the non-paying defendant was presently in active service in any branch of the U.S. Military.

Therefore, if you wish to proceed, you need to do some research in that regard. It's really hard to say what the court would accept but the bottom line is that you will have to refile with at least some proof. This proof will show that you have done some reasonable investigation and will include a declaration under penalty of perjury that the person is not, to the best of your knowledge, in the active military.

I had a divorce case about ten years ago where my client, the petitioner, sued her husband for a dissolution. He was in the active military and I requested and received a written waiver of the Soldiers and Sailors act under penalty of perjury from him. Had he not signed it, the case would have either been dismissed without prejudice or merely put on hold. Divorce cases, if dismissed prior to judgment, are always dismissed without prejudice since there is always a right to a divorce.

In your case, you will have to determine the level of investigation that you believe will satisfty the Court. They all seem to be different but, as a requirement, any Court is gonig to want a declaration under penalty of perjury.

You might see if you can show that the defendant conducts a business, has a current DBA, a current business license, owns a home and is presently residing there, etc. to show that there are no military commitments. This is not an exhaustive list but I offer some examples that come to mind that I've used in the past.

I'm sure that if you refile and reserve the case with a declaration that states the defendant is not active military, the Court will grant a judgment. You need to be aware of any applicable statutes of limitation on your case. Delay can result in an inability to continue in Court. The only issue now is that the defendant gets another change to defend and could come to Court, albeit with no defense, and cause some further delay.

Furthermore, once a judgment is granted, there is a waiting period for execution against the defendant's asset until such a judgment becomes final. It varies from state to state. Once that period has passed with no appeal or motion to set the judgment aside, then you can attempt to collect. That's the hard part.

I have heard of people collecting on small claims judgments but it's not very often that people pay up. They have to be forced by things like Orders of Examination (Court summons to examine and locate assets) which are something like pulling teeth.

You should also be aware that if the person does come to court and loses, in most jurisdistions, the defendant has the right to a trial de novo (new trial) in Superior Court as an appeal. At that point, both parties have the right to an attorney, unlike the original case in small claims court.

The first link below addresses the Soldiers' and Sailors Relief Act and the Second liink is a form that I found which, if provided with some proof of due diligence (statements of what you did to find out that the person is not active military) should satisfy the Court.

Good luck!

Disclaimer: Legal matters are complex and usually require the advice of an attorney. None of the above information should be considered to be legal advice. The information shown and offered is available on the internet and should not be relied upon without independant legal advice. You are responsible for all statutes of limitation, filing and service of the case and any needed declarations using correct forms.

http://usmilitary.about.com/od/sscra/l/blsscra.htm

http://www.formsworkflow.com/d20491.aspx

[ForestFairy]

The court clerk told me I can refile the default judgment w/o prejudice again. There's a paper I have to fill out and sign-swearing she's not in the military and how I know.

My question is this-if the judge were to deny it again, can I refile it til I get it right? I don't want the judge to dismiss the whole thing!:huh:

[gnm109]

Hi, there. Sure, you should be able to refile the case so long as the prior disposition was w/o prejudice and the statute of limitations for the particular transaction has not run out.

As the link on the Soldiers and Sailors Relief Act mentions, they are getting tighter on these things since active military people often get called up on short notice and are unable to handle their financial obligations. The Act then tolls the statute until such time as they are no longer active military.

The Act arose during WWII when similar conditions arose but the made it a bit tighter in 2003.

Good luck!

[ForestFairy]

The judge accepts that she owes me money. I just have to provide "evidence" that she's not on active military duty.

I thought the Facebook pages could be helpful. They're dated and show her playing tennis and drinking by the pool.

Apparently, some people have been entering bogus default judgments against people away in the military. They come back and a court officer has raided their account!:ohmy:

The judge accepted her FaceBook pages as proof she's not in the military, and entered the default Judgment!!!!:thumbsup:

[gnm109]

The judge accepted her FaceBook pages as proof she's not in the military, and entered the default Judgment!!!!:thumbsup:

Glad to hear this. There are some common sense judges on the bench. :thumbsup: