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Thread: I've been threatened to be taken to small claims court

  1. #1
    rmscustom is offline Junior Member
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    I've been threatened to be taken to small claims court

    WI,
    I've received a letter from an attorney that has been retained from the plaintiff that says I will be taken to small claims court if a debt is not paid.
    The plaintiff says the balance I owe is $525 and I have offered to pay the $128 that I think I owe.
    There are 3 things on the invoice that are false but I can only prove beyond a doubt that only 1 of them are and the other 2 are more difficult.
    My question is if I can prove that one item is false but cant prove the other 2 how would a judge decide?
    And if it is decided that I owe less than the $525 but more than the $128 who pays the court costs?
  2. #2
    Antigone* is offline Senior Member
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    Quote Originally Posted by rmscustom View Post
    WI,
    I've received a letter from an attorney that has been retained from the plaintiff that says I will be taken to small claims court if a debt is not paid.
    The plaintiff says the balance I owe is $525 and I have offered to pay the $128 that I think I owe.
    There are 3 things on the invoice that are false but I can only prove beyond a doubt that only 1 of them are and the other 2 are more difficult.
    My question is if I can prove that one item is false but cant prove the other 2 how would a judge decide?
    And if it is decided that I owe less than the $525 but more than the $128 who pays the court costs?
    Can't tell you how a judge will decide. If the judgment is against you, you will pay the court costs and you will pay statutory interest from the date of the judgment.
  3. #3
    latigo is offline Senior Member
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    Quote Originally Posted by rmscustom View Post
    WI,
    I've received a letter from an attorney that has been retained from the plaintiff that says I will be taken to small claims court if a debt is not paid.
    The plaintiff says the balance I owe is $525 and I have offered to pay the $128 that I think I owe.
    There are 3 things on the invoice that are false but I can only prove beyond a doubt that only 1 of them are and the other 2 are more difficult.
    My question is if I can prove that one item is false but cant prove the other 2 how would a judge decide?
    And if it is decided that I owe less than the $525 but more than the $128 who pays the court costs?
    This is important so please respond to the following:

    When was the last time that the creditor (not the plaintiff, not yet) billed you for the $525, or the amount shown on the invoices?

    And what did you do in response to that billing?

    Did you make an objection to the billing? If so, how soon after you received the billing and how were your objections conveyed to he creditor?

    Here is why it is important. Because if you did not formally protest the billing, then the creditor can sue you on an ACCOUNT STATED and you will be stuck with it, period!.

    Also, if at any time you were billed by the creditor for amounts that included the charges indicated by the invoices that you now dispute AND you made payments against the billing WITHOUT OBJECTION an ACCOUNT STATED was established and you are stuck for the amount of the claim.

    Meaning you cannot now challenge those charges in court. Why, because you will be deemed to have acquiesced as to the accuracy of the charges.

    If you don’t think so, read the following excerpts from the Wisconsin Supreme Court case of Stan”s Lumber, Inc. vs. Fleming Associates Case No. 94-1258 (l995)

    In an action on an account stated, the retention of a statement of an account by a party without making an objection within a reasonable time is evidence of acquiescence in or assent to the correctness of the account. Onalaska, 94 Wis.2d at 502-03, 288 N.W.2d at 834; Restatement (Second) of Contracts § 282 (1979).

    An implied agreement to pay may be presumed from such retention. See Wussow v. Badger State Bank, 204 Wis. 467, 476, 236 N.W. 687, 688 (1931).

    Furthermore, an account stated may arise where a debtor makes partial payment on an account or accompanies partial payment with an agreement to pay the balance. Lepp, 1 Wis.2d at 199, 83 N.W.2d at 668
  4. #4
    rmscustom is offline Junior Member
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    Here's the whole story,
    Me and the other party had a verbal agreement that I would build a garage for him (I'm a self employed carpenter) and I would receive goods to pay for my labor and if the goods exceeded my labor I would pay the balance and if my labor exceeded the goods I received he would pay me the balance.
    I received the merchandise I wanted between the end of March 2012 to the first of May 2012. He never gave me a invoice when I received the merchandise.
    I started work on the garage the first week of May 2012. With approximately 1 1/2 days left of work on the garage he told me I didn't have to finish because his brother in law owed him a bunch of money and he was going to finish it to pay him off, I agreed. The next week I seen another carpenter from town finishing the garage. (I figure this was because he knew he was close to owing me money and he worked out a similar merchandise for labor deal with the new carpenter) I was upset but didn't confront the other party at this time. August 2012 I receive a message stating he wanted my bill so we could settle up. I responded that I was upset that he lied to me and wanted an explanation. After I received no response I assumed he thought we were even and I decided to just forget about it.
    June 10, 2013 I receive a letter from his attorney saying I owe him $525 and if I don't pay by June 21, I will be taken to court. Enclosed in the letter is the first invoice I have received and a amount figured by the other party for the work I did.
    June 20, 2013 I send his attorney a letter disputing items on the invoice and the amount I was credited for the work I did and that I would pay the $128 I figured I owe.
    July 10, 2013 I receive another letter from his attorney saying its ludicrous I didn't receive them items and that they have witnesses to the hours I worked and that I have till July 31 to pay or I will be taken to court.

    I'm fairly confident I can prove the hours I worked with 3 witnesses and I know I can prove with out a doubt that one item on his invoice is false. Honestly at this point its more about my pride than the money but I don't want to end up with a bunch of court costs and attorney fees either.

    Any advice would be greatly appreciated.
    Thanks, Ryan
    Last edited by rmscustom; 07-17-2013 at 02:54 AM.
  5. #5
    OHRoadwarrior is offline Senior Member
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    It sounds like the court is going to throw out anything you both do not agree to.
  6. #6
    rmscustom is offline Junior Member
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    Any more advice? I plan to send the attorney another letter basically saying I'm willing to settle for the $128 and if they don't accept I'll see them in court. Should I send a check for that amount with account paid in full in the memo line?
  7. #7
    tranquility is offline Senior Member
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    Quote Originally Posted by rmscustom View Post
    Any more advice? I plan to send the attorney another letter basically saying I'm willing to settle for the $128 and if they don't accept I'll see them in court. Should I send a check for that amount with account paid in full in the memo line?
    Sure.
    http://statutes.laws.com/wisconsin/403/403.311
    WISCONSIN STATUTES AND CODES
    403.311 Accord and satisfaction by use of instrument.

    403.311
    403.311 Accord and satisfaction by use of instrument.

    403.311(1)
    (1) Subsections (2) to (4) apply if a person against whom a claim is asserted proves that all of the following conditions have been met:

    403.311(1)(a)
    (a) That person in good faith tendered an instrument to the claimant as full satisfaction of the claim.

    403.311(1)(b)
    (b) The amount of the claim was unliquidated or subject to a bona fide dispute.

    403.311(1)(c)
    (c) The claimant obtained payment of the instrument.

    403.311(2)
    (2) Unless sub. (3) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.

    403.311(3)
    (3) Subject to sub. (4), a claim is not discharged under sub. (2) if any of the following applies:

    403.311(3)(a)
    (a) The claimant, if an organization, proves that all of the following conditions have been met:

    403.311(3)(a)1.
    1. Within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office or place.

    403.311(3)(a)2.
    2. The instrument or accompanying communication was not received by that designated person, office or place.

    403.311(3)(b)
    (b) The claimant, whether or not an organization, proves that within 90 days after payment of the instrument the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that sent a statement complying with par. (a) 1.

    403.311(4)
    (4) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.

    403.311 - ANNOT.
    History: 1995 a. 449.
  8. #8
    latigo is offline Senior Member
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    Quote Originally Posted by rmscustom View Post
    Here's the whole story,
    Me and the other party had a verbal agreement that I would build a garage for him (I'm a self employed carpenter) and I would receive goods to pay for my labor and if the goods exceeded my labor I would pay the balance and if my labor exceeded the goods I received he would pay me the balance.
    I received the merchandise I wanted between the end of March 2012 to the first of May 2012. He never gave me a invoice when I received the merchandise.
    I started work on the garage the first week of May 2012. With approximately 1 1/2 days left of work on the garage he told me I didn't have to finish because his brother in law owed him a bunch of money and he was going to finish it to pay him off, I agreed. The next week I seen another carpenter from town finishing the garage. (I figure this was because he knew he was close to owing me money and he worked out a similar merchandise for labor deal with the new carpenter) I was upset but didn't confront the other party at this time. August 2012 I receive a message stating he wanted my bill so we could settle up. I responded that I was upset that he lied to me and wanted an explanation. After I received no response I assumed he thought we were even and I decided to just forget about it.
    June 10, 2013 I receive a letter from his attorney saying I owe him $525 and if I don't pay by June 21, I will be taken to court. Enclosed in the letter is the first invoice I have received and a amount figured by the other party for the work I did.
    June 20, 2013 I send his attorney a letter disputing items on the invoice and the amount I was credited for the work I did and that I would pay the $128 I figured I owe.
    July 10, 2013 I receive another letter from his attorney saying its ludicrous I didn't receive them items and that they have witnesses to the hours I worked and that I have till July 31 to pay or I will be taken to court.

    I'm fairly confident I can prove the hours I worked with 3 witnesses and I know I can prove with out a doubt that one item on his invoice is false. Honestly at this point its more about my pride than the money but I don't want to end up with a bunch of court costs and attorney fees either.

    Any advice would be greatly appreciated.
    Thanks, Ryan
    If this joker thinks he is not going to run up against a stone wall in court by attempting to sort out and explain this stupid transaction – labor versus merchandise – and reach a bottom line acceptable for an award of judgment, he is as big an idiot as you were a fool for getting into it.

    His so-called invoices aren’t going to mean diddly-squat unless he is able to establish by a preponderance of the evidence the value of the separate items delivered. AND that there was a firm consensus or accord as to the amount to be credited against your labor. Plus, the agreed hourly rate for your labor.

    And even assuming that he can convince the judge as to the dollar figure to be credited against your labor, he must then prove, again by a preponderance of the evidence, that the “agreed” dollars for the goods you received exceeds the value of your labor.

    What I would have you do is to mail him a check for the amount you consider owed along with a letter telling him that the check is remitted in full satisfaction or any and all claims, demands and choses of action arising out of the deal.

    Then let him take his best shot in court. And even if he miraculously gets a judgment, he is not entitled to his attorney's fee - i. e., should he find one desperate enough to take on such a twisted mess.
    rmscustom likes this.

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