Smallish judgement against largo out of state corporation

[PapaGrande]

My 78 year old mother is in Tennessee. She has an $1100 judgement against a large internet travel agency which is located in California (they did not appear to defend themselves, so we won by default).


Have sent them a copy of the judgement. They have not responded. It's too small to interest any CA attorneys (and too small to be worth paying them).


How can we get them to pay?



Thanks

 

[Zigner]

My 78 year old mother is in Tennessee. She has an $1100 judgement against a large internet travel agency which is located in California (they did not appear to defend themselves, so we won by default).


Have sent them a copy of the judgement. They have not responded. It's too small to interest any CA attorneys (and too small to be worth paying them).


How can we get them to pay?



Thanks

You haven't even shown that your suit in TN was appropriate. In other words, her "win" is likely worthless, as it was likely filed in the wrong jurisdiction, and probably in the wrong forum.

 

[TigerD]

You could look for a judgment enforcement pro in California.

There are several associations for them both nationally and within California.

You have some issues with your judgment - it will need to be domesticated in California and the amount is rather small. You might find a newish judgment enforcer willing to take it on for the experience, but the dollar amount is just too low for serious consideration.

TD

 

[PapaGrande]

You haven't even shown that your suit in TN was appropriate. In other words, her "win" is likely worthless, as it was likely filed in the wrong jurisdiction, and probably in the wrong forum.

I don't know how to show that the suit in TN was appropriate.


She was physically in TN when she did business with them. When a transaction takes place in cyberspace, I don't know where it legally takes place (technically, the transaction took place in every single jurisdiction a packet passed through).

 

[PapaGrande]

You could look for a judgment enforcement pro in California.

I talked to one who told me the judgement was too small for anyone to want to deal with.


I was hoping to find out how we could deal with it ourselves. I will be travelling to CA soon, if I need to file something in person.

 

[PapaGrande]

her "win" is likely worthless, as it was likely filed in the wrong jurisdiction, and probably in the wrong forum.

If they failed to respond after giving notice, does it matter? Weren't they given opportunity to argue that it was the wrong jurisdiction and failed to do so?

 

[Zigner]

What company is this that we're talking about?

 

[PapaGrande]

What company is this that we're talking about?

vayama.com

 

[Zigner]

vayama.com

As I thought, your lawsuit was invalid, for multiple reasons: Your are required to arbitrate, and if that provision is found invalid, you have agreed that California has jurisdiction. You're sunk.

( From http://www.vayama.com/aboutus/terms-of-use?s=253635306 )

Dispute Resolution

Governing Law
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods.

Agreement to Arbitrate
You and Vayama agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). The exclusive jurisdiction and venue of any action in small claims court will be the small claims court(s) located in Santa Clara County, California and each of the parties hereto waives any objection to jurisdiction and venue in such court(s). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Vayama are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Vayama otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.

You agree that if the preceding paragraph is held unenforceable, the exclusive jurisdiction for any dispute arising out of these Terms, or the use of the website or Services, shall be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

 

[PapaGrande]

So I'm assuming that website ToS are legally enforceable?


Looks like even under the ToS we actually do have the right to sue in small claims court but it has to be in Santa Clara County.

 

[single317dad]

So I'm assuming that website ToS are legally enforceable?

They're "legally enforceable" in that they're the terms you agreed to when you decided to do business with that company. They're not laws which could be enforced by the police.

Looks like even under the ToS we actually do have the right to sue in small claims court but it has to be in Santa Clara County.

There have been multiple cases where all or part of a company's ToS was challenged, many times successfully. Bases of challenge have ranged from the terms being unreadable, incomprehensible, unenforceable, illegal, and have even gone so far as to sue on the grounds that "nobody reads those things". I do not believe that you have a solid case to circumvent those terms, nor do I think it would be worth your money to pursue, but it is possible to do so.

 

[PapaGrande]

Looks like the Ninth Circuit Court ruled in Nguyen v Barnes & Noble that so-called "browserwrap" ToS are unenforceable.

 

[PaulMass]

I talked to one who told me the judgement was too small for anyone to want to deal with.


I was hoping to find out how we could deal with it ourselves. I will be travelling to CA soon, if I need to file something in person.

Look into domesticating a judgment in California. This form may (or may not) be appropriate

http://www.courts.ca.gov/documents/ej105.pdf

 

[single317dad]

Looks like the Ninth Circuit Court ruled in Nguyen v Barnes & Noble that so-called "browserwrap" ToS are unenforceable.

When I visited the website in question and chose a sample search of NYC to Sydney, I was forced to explicitly click the box affirming my agreement with the terms, which does not meet the criteria of that case.

That does not mean that you can't challenge the website's terms in court, but at this point you don't need to. What you need to do is attempt to enforce your judgment; when the defendant counters with their argument that you agreed to their terms and your judgment is improper, that is the time.