small claims and 6th amendment

[nautical999]

What is the name of your state (only U.S. law)? il

I have just lost a small claims suit and have asked for a reconsideration in my last motion. I want to bring in an expert witness.
However another issue is the existing claim is against a company that is no longer in existance. The plaintiff has put in for an amendment actually naming the real company name. I am arguing that since the case is closed adding an amendment that adds my company name is not only prejudicial but would violate my rights to have a trial under the real company name. Also there amendment lines out a criminal accusation of deceptive practices. I want to argue that since i did not face the plaintiff only her workers in court then my sixth amendment right to face my accuser was violated or would be violated if amendment is made.

 

[FlyingRon]

The sixth amendment only applies to criminal matters.

If the judgement was obtained against a incorporated entity and they are trying to enjoin a different incorporated entity, then you may have a point that they need to serve and try a case against the right person. If these are just company names referring to you, then no, it's all just you no matter what it's called.

 

[nautical999]

ok. some background:

We incorporated in 2007. The partnership did not work out so in 2008 the corporation was dissolved. The company went back to a sole proprietorship with the original name. The original claim stated me and the inc. as defendants. They amended after the case was closed and added the sole proprietor name as well.

in plaintiff's complaint it states
3. on___________ defendant issued a check #______ in the amount of $979.69 to plaintiff in violation of 720ILCS 5/17-(B) (d) and has to date failed to pay the amount of said check to plaintiff. The check was returned stop payment.
The statute referred to is deceptive practice which is criminal. If the judge does not think what i did was criminal then shouldn't this be dropped? Also shouldn't there be a criminal conviction prior to this small claims complaint. If the plaintiff is looking for relief based upon this paragraph of his complaint then no relief should be granted right? ( the judge stated she does not think that i intended to defraud anyone.)

 

[latigo]

The premise of your argument is flawed because you fail to acknowledge that a civil cause of action can result separately and apart from the same incident that give rise to criminal prosecution. 6th Amendment rights apply in the latter but not the former.

 

[FlyingRon]

The "sole proprietorship" is YOU as far as the law is concerned. They don't really gain or lose anything by adding you to it.

 

[cosine]

The sixth amendment only applies to criminal matters.

You mean like this:

Also there amendment lines out a criminal accusation of deceptive practices.

 

[latigo]

The "sole proprietorship" is YOU as far as the law is concerned. They don't really gain or lose anything by adding you to it.

How so, Ron? How does one effectively sue a fictitious non entity?

Wouldn't the proper party defendant and only proper party defendant be the proprietor/owner of the sole proprietorship?

E. g. "John Doe, doing business under the firm name and style Widgets 'R' Us", Defendant."

And not "Widgets 'R' Us, Defendant."

Your "YOU" in sole proprietorship could be anyone. Widget maker or not.

 

[FlyingRon]

You mean like this:

The accusation of a criminal charge isn't a criminal charge. He says he's talking about small claims court. Until he gets brought up on criminal charges, the sixth amendment doesn't apply.

 

[FlyingRon]

How so, Ron? How does one effectively sue a fictitious non entity?

Wouldn't the proper party defendant and only proper party defendant be the proprietor/owner of the sole proprietorship?

E. g. "John Doe, doing business under the firm name and style Widgets 'R' Us", Defendant."

And not "Widgets 'R' Us, Defendant."

Your "YOU" in sole proprietorship could be anyone. Widget maker or not.

The fictitious entity is another name for the defendant. All naming both the proprietor and the proprietorship does is add clarification (just in case there are some assets improperly in only the fictious name). As far as getting the judgmeent, and perfecting the judgement, under either name, they are the same entity. He's got no entitlement to mount a separated defense based on his fictitious entity which is what he is asking for.

 

[nautical999]

When i incorporated it was to insure that i could not get sued if the corporation messed up. How can i be sued along with the corporation then?
The action was canceling a check in the interest of the company. I was on life support in the hospital when authorization was given for the work to take place by an independant contractor not with my company. However there was a letter naming him as an employee. He was not and i even have a 1099 signed a year before.
The work was shotty. When i went in to pay the bill the invoice stated work that was done on one of my trucks totaled this amount. Later i found out that the work was done on a trailer while i was in the hospital. I went into the shop and even tested out the trailer and found it to be unsafe and canceled the check.

 

[seniorjudge]

When i incorporated it was to insure that i could not get sued if the corporation messed up. How can i be sued along with the corporation then?
The action was canceling a check in the interest of the company. I was on life support in the hospital when authorization was given for the work to take place by an independant contractor not with my company. However there was a letter naming him as an employee. He was not and i even have a 1099 signed a year before.
The work was shotty. When i went in to pay the bill the invoice stated work that was done on one of my trucks totaled this amount. Later i found out that the work was done on a trailer while i was in the hospital. I went into the shop and even tested out the trailer and found it to be unsafe and canceled the check.

When i incorporated it was to insure that i could not get sued if the corporation messed up. How can i be sued along with the corporation then?

This rarely works with a one-man corporation.

Google piercing the corporate veil.

 

[nautical999]

when we were inc. it was two men. It didn't work out so we dissolved the company and i started using the old business name and all.

 

[FlyingRon]

A corporation is a legal entity (a person) in it's own right. It can be sued directly and have judgements against it. Your sole proprietorship is just you. It's just a face you hang on that says I'm working now, but as far as obligations and responsibilities it's the same as you personally.

Yes, you can pierce the corporate veil if there is little there. But in a sole proprietorship, there's nothing to pierce.