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Publisher Unwilling to Pay

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JTaylor

Junior Member
What is the name of your state? CT.

I am a freelance artist, that produced work for a small press publisher out of New York state.

There was an NDA, and contract for my services. Payment for these services was not forthcoming. Not just to myself, but to several other freelancers (at last count, 20) across the country. But I will inquire only regarding my own situation. Promises of payment were made, then threats of legal action for my "going outside the NDA", which did not occur, other then the fact I openly spoke how this person had not paid me. Anything in regards to the publishers IP, storylines, were never disclosed. The publisher had accepted my work, had used it for promotional materials and website content for his purposes. This person has a chronic history of calling upon his lawyer (which now has grown to two separate law firms working these issues), usually causing the aggrieved talent to back down. However, when confronted for a name or contact information for said lawyer, so as to resolve the issue, none is given. Instead, it's a barrage of threats (some physical), taunts, and delaying comments of "you will find out soon enough".

I have now, after a year of waiting for my money, decided it's time to take this publisher to Small Claims Court. I know I can file in CT, because that's where the work was performed. I can inform you that he has already been taken for exactly the same thing already in two separate Florida cases. Though I know this does not set precedent in any way, I mention it because of questions I have in regards to this case later in my message. Subsequently, the publisher did not show up for the cases, supposedly under his attorney's advisement. No letter was sent, no notification that he had problems getting to Florida for the date. He just didn't show up. He has also stated that the judgments against him will be easily overturned, again by his unnamed representatives, and that he doesn't really recognize Small Claims as being a "big thing". Inconsequential was his term.

So here are my questions.

1) If I take him to Small Claims, and he does not show, nor files any paperwork giving cause for his absence... is that usually something any sort of appeal can be based on?

2) If I win the suit, what would I have to do to file the judgment in NY, so as to try to collect?

3) If I win the suit, can I request at that time (in court), what form of payment is acceptable to pay? i.e. I wouldn't trust a check of any sort from this individual. Is it possible to request either a money order/bank check/cash as acceptable payment.
 


seniorjudge

Senior Member
1) If I take him to Small Claims, and he does not show, nor files any paperwork giving cause for his absence... is that usually something any sort of appeal can be based on?

A: If he doesn't show up, then a default judgment may be entered against him. Most small claims statutes allow one "appeal" or, really, a trial de novo (which means starting all over as if the first one didn't happen). Any loser in any lawsuit can appeal.



2) If I win the suit, what would I have to do to file the judgment in NY, so as to try to collect?

A: Go buy a book at the bookstore on collecting judgments. Check out the registration of foreign judgments parts of the book.



3) If I win the suit, can I request at that time (in court), what form of payment is acceptable to pay? i.e. I wouldn't trust a check of any sort from this individual. Is it possible to request either a money order/bank check/cash as acceptable payment.

A: No, you can't request that.
 

JTaylor

Junior Member
A: If he doesn't show up, then a default judgment may be entered against him. Most small claims statutes allow one "appeal" or, really, a trial de novo (which means starting all over as if the first one didn't happen). Any loser in any lawsuit can appeal.

Thank you Senior. In such a situation, if a trial de novo is applied for. Is it still to take place in the same state (CT) versus where the publisher is (NY), or does it have to be moved to his state? I just want to be prepared for it, if it's filed.

I will look for that book as well. Thank you.
 

dcatz

Senior Member
Probably the first time I've disagreed with SJ on a point, but I haven't checked CT Small Claims Court law and, if he's right, I apologize in advance.

In most states, if the defendant is a "no show", his remedy would be a Motion to Vacate the default. If he had "good cause" to satisfy the Court, the matter is re-set for hearing. If he appears and loses, the remedy is an appeal. In the instance of a "no show", the default judgment results with no hearing on the merits. While a Small Claims appeal is actually a new trial (trial de novo), in a higher court the appeal would be based on the record of hearing in the lower court, and a SC default occurs without a hearing.

Whether he could appeal or must move to vacate the default, it will all take place in the same court.
 

JTaylor

Junior Member
Dcatz, I appreciate you weighing in on this.

In either situation though. These all would have to be action's taken in CT, am I correct? Or would the appeal, or the trial de novo be in NY, because the defendant is filing these motions?

I just can't imagine any attorney telling a client to "no show" for a Small Claims case. It makes no sense.
 

dcatz

Senior Member
Everything, whether a Motion to Vacate or an appeal and trial de novo, will be in the CT court.

Of course, if you prevail and get a judgment in CT, to enforce the judgment you'll have to domesticate it in NY to reach NY assets (I'm assuming, for this discussion, that there are no CT assets that you know about and can reach).

If/when you try to domesticate in another state, the judgment debtor is served with a Notice that serves in lieu of a Summons. A hearing date is set and, at that time, the judgment debtor can assert any defense that he/it might have had in the original CT action. If he/it wins, no NY enforcement. Conversely, if he is loses or is again a "no show", you're good to go. Get enforcement tools (from NY) that are appropriate to your
enforcement plan and go for it.
Good luck
 
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JTaylor

Junior Member
Dcatz, thank you again. Naturally, this domestication action, and the ensuing hearing, THAT will be in NY then. Am I correct?
 

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