Long-Arm Statute...not as long as you'd think.

I filed a small claims complaint for a client a few months ago.  The facts are as follows:  He had an on-and-off relationship with a woman for many years.  They met in CA, where she is from, but he is from Boston.  She had some financial difficulties and asked him if he could help her; my client gave her a job in his company out here in Boston.  He flew her out here to have her sign a "signature card" at the bank so she could be a signer on the business account.  In addition, she stated that she needed a new computer and other "stuff" for her to start the new job in his company; he agreed, and spent thousands of dollars.

She flew back to CA with all of her new "stuff," happier than a pig-in-shit.  One week later, she quit before ever doing any actual work, broke up with him, and refused to give back any of the "stuff" my client bought.

A few months later, my client hired me to sue her.  Prior to filing complaint, we had her served by a constable out in CA with a demand letter.  This was to show the court that she did live there, in case she claimed she never received service of the complaint sent from the court.

Fast forward the tape...she had her attorney contact me to say she lost her job, has no money, and would send back the "stuff" if we dropped the suit.  My client advised me to offer the following to the attorney: "If your client will make a substantial charity donation in both her name and my client's name, consider the suit dropped."  After a few days, I received a copy of letter from the defendant addressed to the clerk.  She asked the clerk to dismiss the case for lack of "personal jurisdiction" as she lives in CA and has no contacts here in MA.

The following is the MA "long-arm statute" which allows a plaintiff to bring suit against a defendant in MA when the defendant lives in another state:

Mass. Gen Laws. ch. 223A, § 3A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's

(a) transacting any business in this commonwealth;

(b) contracting to supply services or things in this commonwealth;

(c) causing tortious injury by an act or omission in this commonwealth;

(d) causing tortious injury in this commonwealth by an act or omission outside this

commonwealth if he regularly does or solicits business, or engages in any other persistent course of

conduct, or derives substantial revenue from goods used or consumed or services rendered, in this

commonwealth;

(e) having an interest in, using or possessing real property in this commonwealth;

(f) contracting to insure any person, property or risk located within this commonwealth at the

time of contracting;

(g) maintaining a domicile in this commonwealth while a party to a personal or marital

relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a

child, child support or child custody; or the commission of any act giving rise to such a claim; or

(h) having been subject to the exercise of personal jurisdiction of a court of the commonwealth

which has resulted in an order of alimony, custody, child support or property settlement,

notwithstanding the subsequent departure of one of the original parties from the commonwealth, if

the action involves modification of such order or orders and the moving party resides in the

commonwealth, or if the action involves enforcement of such order notwithstanding the domicile of
the moving party.

I received a call from the clerk asking me if I could show there was a reason to utilize the long-arm-statute.  I assured him that I would show the court that the defendant conducted business here in MA under Mass. Gen Laws. ch. 223A, § 3(a).  The clerk hung up after stating he would see me in court.

On the day of trial, I approached the clerk and showed him a copy of my client's sworn affidavit telling his side of the story.  I then showed the clerk the signed bank card, making her a signer on my client's account here in Boston.  I showed the clerk purchases she had made while she was here in Boston.  I showed the clerk many emails between my client and the defendant showing her acceptance to work for a MA company.  I showed the clerk her many flights back and forth form CA to MA, prior to her agreeing to work for my client.

As I presented each piece of evidence, he continued to shake his head back and forth.  He kept interrupting me stating that my client and the defendant had a personal relationship, and that my client absolutely has a case against the defendant, just not here in MA.

At the end of the day, the defendant stole my client's money, broke his heart, and is laughing her ass off that the case was dismissed!!!

I guess the only advice I can give, is to keep this story in mind when filing a complaint against an out of state defendant. 

Craig :-)

 


    

Earn $6,795/Month working at home part time!

A client of mine received an email from a friend of his yesterday, with a link that took him to a web page, that explained how a woman in his town is making big money...this is her quote from an interview that was posted on CNBC (I'm leaving out the company's name), "It was pretty easy. I filled out a short form and applied for  ***********.  There is some maintenance fee, so it's not really free, but it was under $50. I received access to the system and within four weeks I was making over $5,000 a month. It's really simple, I am not a computer whiz, but I can use the Internet. I post links that are given to me, I don't even have to sell anything. They are constantly recruiting people to post links, you should try it." She went on to say, "Since getting my ***********, I actually make about $5,000-$7,000 a month using the Internet. It is enough to comfortably replace my old job's income. And the best thing is that I only work about 10-12 hours a week from home so I now have a lot more time for my family."

He was sold.  If someone from his town is making this kinda money, and she is claiming how easy it is, he was thinking, "what the hell...I'm in!"

He clicked the link and began his quest to make almost $7,000/month working only 12 hours a week.  Yeeee Haaaa!!

He was immediately brought to a website that sold the shit out of him!  The woman who is selling this system is brilliant; he was sold instantly.  She had the obligatory sob story of her life...losing her job, had kids, divorced, couldn't find work, blah, blah, blah.  He scanned over many paragraphs of this crap until he got to what he was looking for...what he needed to do to make crazy money working only 12 hours a week!

All he had to do was to post links onto websites.  The more links he posted, the more money he would make.  Of course, this golden opportunity was only being offered to 2 individuals in his town.  He had to act "Right Now" or possibly lose this magical opportunity.  In addition, this should cost him $149, but the writer "understands that before she became a millionaire, $149 was a lot of money to come up with, so she will allow him to pay $99"...but who cared, he was about to make $7,000/month extra only working 12 hours a week!!

Before he could begin posting links on websites, he needed to be certified by this woman.  But she assured him in the ad, that once he was certified, he was "guaranteed placement" in posting links.  By the end of the advertisement, he couldn't wait to give her his money. 

He clicked "pay now" and was so excited to be on his way to financial freedom...NOT!!

Once he paid, he was brought to another site, not the original site.  From that site, the truth smacked him in the face.  This woman got him to pay her $99 so he could start a website that catered to depressed people, people looking for love, or overweight people.  Instantly, he felt like he wanted to throw up because this woman is "targeting" people who are in real need of help.  Regardless, he felt he should continue on his journey to become certified and start making money.

After clicking through many windows of setting up a busllshit website, he finally realized...there is, and never was, a certification process.  The job is to create as many websites as he wanted to pay for, post links on those websites for other people's businesses, and if anyone ever buys anything from those businesses, he might make money. 

This is a clear cut case of misrepresentation- false representation of a material fact, with knowledge of its falsity, made to induce the plaintiff to act on the representation, and reasonably relied upon as true.

He emailed the company and was promised his $99 would be credited in 4-5 business days.  We shall see. 

If anyone has a similar story, please contact me to discuss your options.

Also, if anyone has a real "work-at-home" part time gig they wanna share, please let me know.

Craig  :-)

Look Before You Leap

There is always a moment of silence when I ask the following question to potential Plaintiff clients, "Does the person you're trying to sue have any money or own any real estate?"

After the initial pause, I break the silence and try to explain that winning a judgment is far easier than collecting on a judgment.... and almost impossible if the Defendant has nothing. There is an old expression which sums this up easily, "You can't get blood from a stone!"

Of course, many lawyers won't tell potential clients this 'smack of reality' because it will lesson the chance of collecting a fee for representing them in court.

I have always taken a different approach- full disclosure from the start knowing some clients will choose not to pursue a claim.

Notwithstanding the above, a judgment is valid for 20 years; therefore, a Defendant may one day come into some money and will still owe Plaintiff for the judgment amount, plus interest!

My advice... a little investigative work before jumping into a lawsuit couldn't hurt.

"Stay of Execution"

In Massachusetts Small Claims matters, if you default, you lose.  If you have a legitimate reason for not showing up on your assigned court date, you may have an opportunity to cancel out that default and start fresh with a new court date; however, it must be filed within 1 year.

In order to start the process of "Beginning Anew"...You may use the following 2 templates:
1) Motion To Remove Default and Vacate Judgment, and 2) Affidavit In Support of Motion to Remove Default and Vacate Judgment.

These documents will hopefully assist you in removing the default and eliminating the judgment against you...for the time being, of course.  This is only a stay of execution because you will receive a new court date; and yes, you must show up on that new court date or you will have lost your opportunity to be heard.  No additional Motions To Remove Default are ever granted as easily as the first. 

The reason most clerks allow Motions to Remove Default is to give defendants their "day in court" and to actually have an opportunity to defend themselves.  If you think about it...it makes sense.

Hope this helps!!

Craig

I can't get arrested...Can I?

This issue comes up a lot when I consult with defendants in small claims court matters.

Small claims court is civil in nature, which doesn't allow for criminal procedure; however, if a clerk orders a defendant to pay "X" amount of money to the Plaintiff, and the Defendant doesn't pay, there can be a capias issued.

A capias is a civil arrest warrant, which is just a way of allowing a sheriff or constable to arrest a Defendant for nonpayment, which is basically contempt of a court order.

I advise Defendants who do not prevail in court, to come up with a payment plan that they can afford, because if they don't abide by that plan, they run the risk of being in contempt of court; and yes, possibly arrested.

Has this happened to anyone you know?
Thanks.

Craig
www.masmallclaims.com

Keep it Simple

Here is a short video I made last month on MA small claims court basics.  Take the advice...or don't.  Either way, if you have a small claims court story, I would love to hear it!  



 

 

 

 

Top 5 reasons NOT to default

1) Give yourself a fighting chance- If you default by not showing up for court, you lose without ever having an opportunity to defend yourself.  It's like being in a fist fight and agreeing to allow your opponent to put on brass knuckles and smash you right in the face! At the very least, file your answer and deny the claim.

2) Plaintiff may not show up- If you file your answer and deny the claim, maybe the plaintiff won't show up on your court date.  If plaintiff doesn't show, you prevail. 

3) Postpone court date- By filing a motion to remove to district court, this adds many, many months to the actual court date.  It's not the easiest argument to make, but if you need "discovery" from the plaintiff, the court should allow your motion to remove to district court docket.

4) 20 years/plus interest- If you don't bother showing up on your trial date and you default, the court grants the plaintiff a default judgment and you will owe that amount for 20 years.  If you add up the interest on that debt over 20 years...you do the frickin math!

5) Settlement- Instead of putting your head in the sand and ignoring the lawsuit, like soooo many people do, call the plaintiff and work out a settlement agreement.  You may come up with a better deal than you think.

As always, check out my site www.masmallclaims.com or call me 781-888-5551 to discuss your case.

Thanks,
Attorney Craig Singer