Small claims question!

What is the name of your state? Michigan.
Ok I have been reading this site for a while, never thought I would be posting on here. I am new here. My problem is this. On 2/25 I loaned a so called friend $3750.00 She bought a car with the money. Since she bought the car our frienship has went sideways. She wont answer my calls or return them. I know**************....I will get sucker tattooed on my forehead after this is over. I have a hand written promisary note from her, that she would pay me $150.00 a month till paid. My question is this, how long should I wait to go to court and get this rolling. I really think she thinks that she can get away with this. Do I have to wait longer? She lives with her Dad, I do know where she works, however I have a feeling she may move out of Dads, and quit her job ( a waitress) and I wont know where she is. I know she has no bank accounts, no assetts except the car, and her job, that is it. I have never been to court for anything, so I am a little intimidated. The max in this state is $3000.00, but I would rather have that then nothing, I know I cant get the other $750.00, and will just have to learn from that. If I take her to court, and she has 21 days to pay, wich she cant, I am afraid she will quit her job, move, and I wont be able to collect. The only choice is to sieze the car and sell it, and garnish her wages, but I know she has 21 days to pay the judgement, and she may dissapear. Any and all suggestions on this matter would be appreciated. Thank you.
Jim

I guess my main question is, do I have to allow a resonable time before I file a small claims case. I realize this is the first month, and there is one more day in it. She may show up with the money tommorrow, but I doubt it. If she does not, how long should I wait? Any advice, please?

My question is this, how long should I wait to go to court and get this rolling.

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You start yesterday. Actually, you have several potential problems, and viable solutions may not be cost-effective or possible in Small Claims. I’ll explain some of them anyway.

I have a feeling she may move out of Dads, and quit her job (a waitress)

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Even if she doesn’t, she may earn minimum wage and tips. Tips can’t be covered in a garnishment order, wages may be reduced by benefits (eg. deductions for health insurance) and there may be very little that you can reach (before she quits). If you can recover via garnishment, consider yourself very lucky.

I know she has 21 days to pay the judgement, and she may dissapear.

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She has the time to appeal or pay voluntarily before you can enforce involuntarily, and you’re right, she may disappear. A pre-judgment writ of attachment is available in your state, but it probably isn’t cost-effective, and you’ve suggested no basis to do it ex parte. Attorneys aren’t allowed in SC in your state, and you probably didn’t include an enforcement costs and fees provision in your hand-written promissory note, so you’re on your own and down to the car.

I’ll assume that you’ll get judgment, possibly even by default. I’d assume that she won’t pay during the period that execution is stayed. I’d have all of my enforcement tools ready for filing on the 22nd day. If you prevail at the hearing or get a default, I’d ask the judge for an Order that the car not be sold or title transferred without permission of the Court during the “stay” period or, in the alternative, that you be allowed to immediately file a Judgment Lien on Personal Property, maintenance of which is contingent on the outcome of any appeal. Procedurally, it can be done to prevent sale of the car. It would be discretionary with the Court and whether a judge would do it is anybody’s guess (it would be a very uncommon request in SC), but it doesn’t hurt to try, because I can’t think of any other way to protect yourself, and you could end up dealing with a car sale as a fraudulent conveyance. That would even be more complex and expensive.

dcatz,
Thank you for your response. It is disheartening to here some of what you said, because my options are limited it seems. I will be at the court in the morning to start the process. She does make like $2.65 an hour plus tips, works 6 days a week, its to bad the tips cant be touched because she makes decent money with the tips. I dont think she will sell the car, since she does need it, and has to children, but she may try to transfer the title to another persons name so that wont be her property or something like that. So I see your point for a order that the car cant be sold or title transfered, during the stay. Would this be something I would do on the first court date? Providing I get the judgment. As far as a pre judgment writ of attachment, I am assuming this is something that can only be done with a attorney, am I correct? What does it mean? You mentioned enforcement tools, what exactly are they? Just the forms I need to fill out from the court? Thank you so much for your help. Its just sad to know that being kind and helping someone out, because you can, ends up turning into situations like this. I know this same story has happened over and over again to people. It seems as some people have no conscience. Thanks again.

Nothing is guaranteed but, with a signed promissory note, getting a judgment is probably the most certain thing in your situation. And while I’m not suggesting that you tarry, have you tried explaining that this matter is about to move to a higher plateau? A perfected judgment is going to result in increased costs of credit and have other negative consequences for her, whether you can successfully enforce or not. Perhaps some realistic thinking on her part is all that is needed to get this on track.

its to bad the tips cant be touched

Tips aren’t wages paid by her employer and can’t be the basis of a garnishment.

Would this be something I would do on the first court date?

If there is a ruling in your favor, ask the judge to make the prohibition a part of the judgment Order. I want to emphasize that I’m reaching here. Acceding to such a request will be discretionary with the Court, and the request will probably come as a surprise. Be prepared to explain the reason(s) justifying an Order and be prepared for rejection nonetheless.

As far as a pre judgment writ of attachment, I am assuming this is something that can only be done with a attorney, am I correct?

Let’s just say that it’s a complex filing and, because it confers post-judgment rights without the Constitutional niceties of trial and disposition on the merits, it is meticulously scrutinized. It commonly requires posting a surety bond in case you don’t prevail and, in my state, it couldn’t be done in SC. Other than those restrictions, it’s something you could try on your own. If it were my first time, I’d prefer the assistance of counsel.

You mentioned enforcement tools, what exactly are they?

I’m just referring to all the paperwork that you need to do whatever it is you’re going to do – liens, writs, garnishment Orders – the form for the Court, the Sheriff/Marshal, the county recorder - whatever they are and whatever they’re called in your state. At the same time that you’re thinking about getting a judgment, you should be thinking about and preparing to enforce it. Actually, it’s a good idea to think about that first. Getting the judgment is the easy part.

dcatz,
Thankyou again. I am going to call her tomorrow, if she wont take my call I will leave a message, telling her that this is not going to go away, and that I am prepared to take it to the next level. I have not recieved a cent from her to this point. What if she offers to pay me for March the $150.00 should I just take it and wait and see how it plays out. Refuse it and go to court? I think she will do just enough to try and satisfy me. But at $150.00 a month I may be fighting this for the next 2 years. Since there is no longer communication between us it makes it difficult. My gut feeling is she thinks she has a free car. As for the pre-judgement wit of attachment, I dont think I will do that on my own, and I am not employed at the moment. But you have pointed me in the right direction, and I appreciate that. Will keep posting things as I find out more. Thanks

Ok, here is a update on the progress of this claim. I did call the young lady, before I went to the court to start this, and recieved no response as always. May 1, is the court date. Yesterday, I get a call from here asking what this was all about, and then giving a list of excuses, of why I wasnt paid. I was in the hospital, I had to help my father pay a large gas bill to avoid shutoff etc. She said in 2 weeks she would have March and Aprils payment, and pay me the cost of starting this action in the first place. My feeling is this**************..I dont believe she would have called me at all, if not for the court paper being sent to her. Not really sure what to do at this point. I do have a promisary note already, is there anyway to protect myself anymore? Should I follow through with the case anyway, and take my chances to collect if I get the judgement? Will the court look at here offer to bring all payments up to date, as something against me, such as I was not willing to agree to this? What about mediation? I am really confused now. Any suggestions? Thank you.

Why should this be confusing? May 1st is more than two weeks away. Either you get paid or you proceed. If you’re offered and accept installment payments, you can always ask for a continuance to let payments be made. If they are, you dismiss; otherwise, you go back. You know the defendant and we don’t. Only you can decide if that’s sensible or just a way to buy time.

The court could basically do the same thing by entering a conditional judgment: the court announces judgment but doesn’t enter it on the record for X weeks. If she pays in less than X, you dismiss and there is no judgment.

A third option is to appear, try the case and, assuming you get judgment, offer to vacate and dismiss if paid promptly. Then there is no continuing public record. There are a number of ways to handle this.

You will not be prejudiced because there have been unfulfilled offers to pay.

Mediation is great, but I don’t see what function it serves at this point.

Thanks for the response. I think I am going to do the continuance if she pays. I think she realizes that with that promisary note she is in trouble. Time will tell, I guess, I told her she has 2 weeks to bring everything up to date, or I will keep the May 1, court date. I guess the thing that was confusing to me, was this was a friend of mine, and I am realizing, that I need to separate feelings out of this. I am not trying to get anymore then what I am owed. I thank you again Dcatz for your time.