First time in small claims lawsuit - loaned $7,000 and ghosted

[SmallClaimsHelp]

Absolutely he should check before his flight to make sure all is set for the hearing. I advised that earlier. The Court told SmallClaimsHelp that the certified mailing sent by the Court to the defendant apparently was received.

To be clear, I only stated that the Court had sent the official certified mail on 2/9/2023. As of today, no response has been received by the courthouse from the defendant or USPS saying they could not deliver.

I have confirmed via county appraisal district recrords again that the defendant and his wife still live at the address he gave me.

 

[quincy]

I called the courthouse again today. They said they still have not received word from the defendant or th post office. as i understand it, it is a very antiquated process.

1) send certified mail via usps - This was done almost 5 weeks ago on2/9/2023

2) if no response, send regular USPS

3) if doesnt come back "return to sender" they assume they still live there and are just refusing to respond.

To date, no response form defendant and no response from USPS they couldnt deliver.

I suspect what is likely to happen is i will fly to Ohio and defendant won't show up, defendant won't have responded and USPS wont have confirmed to courthouse they can not deliver.

In that case, the trip i think is wasted and we have to try to schedule another date.

Do i understand all this correctly? I will be making the trip regardless as they could always show up in person so i have to be there.

Also, should i reach out to the defendant tonight or tomorrow to let them know I'll be seeing them in court this week? Their last response to me 10-14 days ago was to basically f-off (their first response to me since April 2022).

You probably should contact the Court tomorrow to make sure there is adequate proof of service. You also could ask if the hearing date should be rescheduled

It sounds to me that the Court has followed their regular procedure and that your defendants received your complaint and notice of the hearing and had the opportunity to respond to the complaint, but chose not to.

You could also contact an attorney in Ohio to see if all is as it should be.

If your defendants do not show up in court, you could get a default judgment.

 

[adjusterjack]

If your defendants do not show up in court, you could get a default judgment.

Maybe not. Ohio process service Rule 4.1 requires a signed receipt.

Rule 4.1 - Process: Methods of Service, Ohio Civ.R. 4.1 | Casetext Search + Citator

Without it, the judge might not grant a default judgment (never mind what the clerk says). And if he does, it could easily be set aside when the defendant claims no service and there isn't any evidence of service.

If there is no evidence of service, I suggest that the OP get a continuance and request personal service by a process server.

 

[quincy]

Maybe not. Ohio process service Rule 4.1 requires a signed receipt.

Rule 4.1 - Process: Methods of Service, Ohio Civ.R. 4.1 | Casetext Search + Citator

Without it, the judge might not grant a default judgment (never mind what the clerk says). And if he does, it could easily be set aside when the defendant claims no service and there isn't any evidence of service.

If there is no evidence of service, I suggest that the OP get a continuance and request personal service by a process server.

That’s why I wrote “could” and not “would.”

 

[SmallClaimsHelp]

Thank you for the thoughts

 

[quincy]

I will be interested in hearing what happens in Ohio. Good luck.

 

[SmallClaimsHelp]

New update. They have still "not made service". Certified mail was sent. No response from the USPS saying they couldnt deliver.

My understanding is that without the USPS saying someting (they couldnt deliver) or him returning it, if i show up tomorrow and he DOES NOT show up, the judge will say "they havent made service"

so this leaves me two options:

1) I will go and just see what happens

2) if i dont go and shockingly the man and his wife that have not paid back their loan for a year now do show up, what happens? Do they win? Can i bring forth another lawsuit or is that my one opportunity?

Trying to explore all options before i step on the plane which I'm happy to do.

Also, I called some phoen numbers and talked with his wife 20 min ago. I was actually trying to reach her dad / his father in law.

I asked to speak wiht the dad (it's his phone number). she said "ok. can i ask who's calling?" I told her my name.

She said "can i ask what this is in refefrence to"

I said "this is in response to the $7,000 i loaned to you and your husband that they have no paid back for over a year"

She responded "we are not interested in your scam" and hung up

 

[quincy]

New update. They have still "not made service". Certified mail was sent. No response from the USPS saying they couldnt deliver.

My understanding is that without the USPS saying someting (they couldnt deliver) or him returning it, if i show up tomorrow and he DOES NOT show up, the judge will say "they havent made service"

so this leaves me two options:

1) I will go and just see what happens

2) if i dont go and shockingly the man and his wife that have not paid back their loan for a year now do show up, what happens? Do they win? Can i bring forth another lawsuit or is that my one opportunity?

Trying to explore all options before i step on the plane which I'm happy to do.

Also, I called some phoen numbers and talked with his wife 20 min ago. I was actually trying to reach her dad / his father in law.

I asked to speak wiht the dad (it's his phone number). she said "ok. can i ask who's calling?" I told her my name.

She said "can i ask what this is in refefrence to"

I said "this is in response to the $7,000 i loaned to you and your husband that they have no paid back for over a year"

She responded "we are not interested in your scam" and hung up

https://faq.usps.com/s/article/What-is-Certified-Mail

You should get the tracking number of the certified mail from the Court.

 

[adjusterjack]

1) I will go and just see what happens

You understand that you don't get your travel costs back, right?

You might get a default judgment that could be set aside if the defendant claims lack of service and you cannot present evidence of service.

Pity you didn't think to record the conversation with the wife to see if she would admit getting the court papers.

2) if i dont go and shockingly the man and his wife that have not paid back their loan for a year now do show up, what happens? Do they win? Can i bring forth another lawsuit or is that my one opportunity?

I would expect the defendant to ask for a dismissal with prejudice. The judge will be angry that you disrespected the court by not showing up when the defendant did. With prejudice means you cannot refile the lawsuit.

 

[quincy]

Although a bit late at this point, read through this guide published by the Ohio Judicial Conference, Ohio State Bar Foundation, to see if you have done everything that needs to be done. Note that the court hearing your case may have rules that differ slightly (e.g., like the court not requiring a defendant’s response to the complaint). Also note that there may have been some changes since this guide was last updated.

https://akronmunicipalcourt.org/media/1085/small-claims-court-a-citizens-guide.pdf

Good luck.

 

[SmallClaimsHelp]

A quick update. As i was on the plane flying into Columbus, i received a wifi call from the clerk saying that the Defendant called in just now and asked that the date be moved. The magistrate allowed the date to be moved.

I landed and confirmed that I should not come to the courthouse and should fly back home. The date was moved out a month (now a couple of weeks from now).

They also confirmed that they dont have "good service" although the defendant called and begged them to move the date.

They also told me i could pay to havea Bailiff make the service. I asked how much and they said $25. I wrote the check and for the last several weeks, allegedly, the bailiff has been attempting to make service.

The clerk told me if the bailiff can't make service, we are right back where we started in that when the court date comes, if i dont show up and the defendant shows up, I lose the case, but if i show up and they still don't have "good service" we are still in the same situation and the court will reschedule the date again.

all of this may be standard run around but this is my first time. so far it has gone as expected. Any suggestions on what i can or should be doing differently?

I suppose i could hire a PI or go sit outside he and his wife's house myself to serve him.

Clearly i contacted his wife or his mother in law because when he called in to beg for the date to be moved, he said his family had just told him the night before (as a result of my phone call i would assume .

Also the online docket said that I made the request to move the date (the plaintiff) when i did not. I informed the clerk that this was in error today and she said "i dont know why it says that, as we know the defendant requested the court date be moved (but they still dont have good service even though he knew about the case and asked it be moved)."

Fascinating experience.

 

[quincy]

A quick update. As i was on the plane flying into Columbus, i received a wifi call from the clerk saying that the Defendant called in just now and asked that the date be moved. The magistrate allowed the date to be moved.

I landed and confirmed that I should not come to the courthouse and should fly back home. The date was moved out a month (now a couple of weeks from now).

They also confirmed that they dont have "good service" although the defendant called and begged them to move the date.

They also told me i could pay to havea Bailiff make the service. I asked how much and they said $25. I wrote the check and for the last several weeks, allegedly, the bailiff has been attempting to make service.

The clerk told me if the bailiff can't make service, we are right back where we started in that when the court date comes, if i dont show up and the defendant shows up, I lose the case, but if i show up and they still don't have "good service" we are still in the same situation and the court will reschedule the date again.

all of this may be standard run around but this is my first time. so far it has gone as expected. Any suggestions on what i can or should be doing differently?

I suppose i could hire a PI or go sit outside he and his wife's house myself to serve him.

Clearly i contacted his wife or his mother in law because when he called in to beg for the date to be moved, he said his family had just told him the night before (as a result of my phone call i would assume .

Also the online docket said that I made the request to move the date (the plaintiff) when i did not. I informed the clerk that this was in error today and she said "i dont know why it says that, as we know the defendant requested the court date be moved (but they still dont have good service even though he knew about the case and asked it be moved)."

Fascinating experience.

A typical small claims case in Ohio should take about 40 days from the date of filing a claim to the scheduled hearing date. But that of course assumes proper service and no motions by either party to extend the hearing date.

You should read the guide linked to earlier to see what needs to be done. Or you can speak to an attorney in Ohio for advice and direction.

Thank you for the update, SmallClaimsHelp. I am sorry that you could not get from the court information on the postponed hearing prior to your Ohio flight.

 

[adjusterjack]

I suppose i could hire a PI or go sit outside he and his wife's house myself to serve him.

You'll have to verify this on your own but:

1 - A party to the case cannot be his own process server.

Ohio Rules of Civil Procedure, Process Serving Rules - ServeNow.com (serve-now.com)

2 - It looks like you need the consent of the court before you can even engage a process server:

IN THE FRANKLIN COUNTY MUNICIPAL COURT (franklincountyohio.gov)

3 - A private investigator is not necessarily a process server. But could be if he has been appointed by the court as a process server.

A process server is likely less costly than a private investigator. Contact some professional process servers where the court is located and find out what they have to say about the procedure.

OTOH, a private investigator (who is also a process server) will be a lot more creative in serving the Defendant. You will, of course, pay him an hourly rate for his efforts.

A bailiff who is paid a flat fee is likely to make one try and turn around and go home.

 

[Zigner]

A bailiff who is paid a flat fee is likely to make one try and turn around and go home.

Additionally, that bailiff is likely to arrive in a clearly marked vehicle, thus making it less likely that the other party will make themselves available for service. A private process server, even without being especially creative about it, probably won't be quite as conspicuous.

 

[quincy]

What I find puzzling is that the certified letter sent originally by the court to the defendant should have had a delivery receipt, and delivery should have been tracked. The tracking information should be recorded by the court. That would be proof of service.

I don’t understand why there is no record of delivery or of a delivery attempt. The court apparently shows nothing.

Something sounds off.