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Quick question about small claims court
- Thread starter rl2000
- Start date
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It's common to do in the defendant's location. But that is not always the case. If there was a contract that specified the jurisdiction, then that location is where it will likely take place. If there is no such clause, then it may take place where the contract was signed. Tell us more.
I do wedding photography, and just had a bride cancel after several months. I realized I didn't have the contract returned to me, and she wants her deposit back. It is the industry standard to always require a non-refundable deposit though, and something like this can cost a photographer a grand easily from an unbooked premium Saturday, so you can understand why non-refundable deposits are so important. However, because I don't have her signature on the contract, that would be something which I believe could be battled out. She is hundreds of miles away, which is why I ask where the case would likely take place. If she has to come here, there's no way she would do it, because it's just not worth it.
I'm planning to compromise and give her a portion back, but I would still like to know what would happen if she decided to pursue the remainder (which isn't much, so I can't see any reasonable person going after it).
JustStacey
Junior Member
Small Claims Court Form question...please help..
Can anyone tell me where I can go to retrieve a template for an Answer re: a small claims case filed against me (civil)? I need to respond to the court before my court date. Thank you so much.
Stacey (Texas)
Can anyone tell me where I can go to retrieve a template for an Answer re: a small claims case filed against me (civil)? I need to respond to the court before my court date. Thank you so much.
Stacey (Texas)
Stacey, you need to start your own thread for your questions about your case.
Lots of businesses, including large corporations, keep deposits without contracts all the time. Are you saying that because this is an individual, he/she is held to a higher standard of responsibility than those businesses and corporations?
Zigner
Senior Member, Non-Attorney
That doesn't make it legal...
Again, based on the info we've been given, THIS OP, in THIS SITUATION, has no contract allowing them to keep the deposit, IMO.
I DISAGREE with those telling you there was no contract!
Furthermore, I don't believe she has any legal basis whatsoever to ask for a return of her deposit.
Contrary to some of the guesswork in here - the agreement to engage your services on the condition that the deposit was non-refundable deposit DOES NOT HAVE TO BE IN WRITING! There is nothing in the statutes of fraud requiring that such an agreement be in writing with her signature attached!
If at the time she engaged your services, all of the essential elements of your services and your fees were understood and agreed upon and it was understood that should she cancel that you were entitled to keep the deposit….
Then a binding, enforceable agreement was struck at that time!
The fact that you made an attempt to have the understanding spelled out in written form does not alter that fact. All you were attempting to do was to document an agreement that had already been made.
However, if she had returned the contract immediately unsigned with an explanation that she was not agreeable to the risk of loosing the deposit and had demanded that it be returned,
OR, she had called or written within a reasonable time of receiving the contract so informing you, then it could be sensiblyu argued that there never was a meeting of the minds or firm understanding between the two you.
But she did neither. Her silence confirms the initial understanding.
If she does pursue this in court I would have you counterclaim for breach of contract and ask for damage in the nature of the anticipated profit you would have made on the shoot.
(The judge might properly conclude that your measure of damages is limited to the deposit, but a counterclaim might give her a sleepless night or two and cause her to back off.)
______________________
As far as venue is concerned – under Michigan law the county where cases in small claims division “shall” be filed is either:
1. The county “where the cause of action arose”, or
2. In the county in “which (you) the defendant is established (?), or resides or is employed”. *
Consequently, the only way she could properly file in her home county, would be if you had traveled there and made the deal with her in that county.
Should she file in her own county and you get served with process –
IMMEDIATELY call the small claims clerk in that county and ask what procedure you need to follow to object to the venue.
(It may be that the claim will be dismissed without prejudice. I’m doubtful that there is a process in Michigan for transferring a case from one small claims division to another. But I’m only speculating.)
If you don’t get satisfaction from the clerk, then talk to an attorney. Because it is possible that small claims venue is NOT jurisdictional and unless you make a timely objection as to venue, court might proceed to rule on her claim.)
Understand that this is offered as general information and not to be treated as legal advice.
Sax
[*] See: Michigan Revised Judiciary Act Section 8415.
Furthermore, I don't believe she has any legal basis whatsoever to ask for a return of her deposit.
Contrary to some of the guesswork in here - the agreement to engage your services on the condition that the deposit was non-refundable deposit DOES NOT HAVE TO BE IN WRITING! There is nothing in the statutes of fraud requiring that such an agreement be in writing with her signature attached!
If at the time she engaged your services, all of the essential elements of your services and your fees were understood and agreed upon and it was understood that should she cancel that you were entitled to keep the deposit….
Then a binding, enforceable agreement was struck at that time!
The fact that you made an attempt to have the understanding spelled out in written form does not alter that fact. All you were attempting to do was to document an agreement that had already been made.
However, if she had returned the contract immediately unsigned with an explanation that she was not agreeable to the risk of loosing the deposit and had demanded that it be returned,
OR, she had called or written within a reasonable time of receiving the contract so informing you, then it could be sensiblyu argued that there never was a meeting of the minds or firm understanding between the two you.
But she did neither. Her silence confirms the initial understanding.
If she does pursue this in court I would have you counterclaim for breach of contract and ask for damage in the nature of the anticipated profit you would have made on the shoot.
(The judge might properly conclude that your measure of damages is limited to the deposit, but a counterclaim might give her a sleepless night or two and cause her to back off.)
______________________
As far as venue is concerned – under Michigan law the county where cases in small claims division “shall” be filed is either:
1. The county “where the cause of action arose”, or
2. In the county in “which (you) the defendant is established (?), or resides or is employed”. *
Consequently, the only way she could properly file in her home county, would be if you had traveled there and made the deal with her in that county.
Should she file in her own county and you get served with process –
IMMEDIATELY call the small claims clerk in that county and ask what procedure you need to follow to object to the venue.
(It may be that the claim will be dismissed without prejudice. I’m doubtful that there is a process in Michigan for transferring a case from one small claims division to another. But I’m only speculating.)
If you don’t get satisfaction from the clerk, then talk to an attorney. Because it is possible that small claims venue is NOT jurisdictional and unless you make a timely objection as to venue, court might proceed to rule on her claim.)
Understand that this is offered as general information and not to be treated as legal advice.
Sax
[*] See: Michigan Revised Judiciary Act Section 8415.
rl2000:
Just one other point.
This lady is going to have a tough time convincing a judge that when she paid you the deposit that she did not fully understand that it committed you to provide the services.
Consequently how is she to logically maintain that you were commited to the contract terms and she wasn't.
I don't think she has prayer.
Sax
Just one other point.
This lady is going to have a tough time convincing a judge that when she paid you the deposit that she did not fully understand that it committed you to provide the services.
Consequently how is she to logically maintain that you were commited to the contract terms and she wasn't.
I don't think she has prayer.
Sax
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