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Someone you thought was a very good friend asked you for a loan. You had the money; you liked the guy; you said okay. You loaned this very good friend $2,500.00. Your friend bought a new house two months later; he's not hurting. After you heard about the house, you called him, asking when he was going to pay you back. Your "friend" said he had really huge expenses now because of the new house. He said soon. Two weeks later you called again. His response was the same: soon. You just hung up. You're tired of calling. He said soon again. What to do next?
This situation sounds like a case for small claims court. Here's what you need to do:
1. Letter
Write your friend a letter. Tell him that he has two weeks to pay you back. Tell him you want to resolve his payment to you in a friendly manner, but if you do not receive a check within two weeks, you will see him in small claims court.
We're hoping that the letter resolves the non-payment problem. If it does not, you'll have to continue to step two.
2. File a claim
Go to your local small claims court and complete the forms. You can probably download the forms from your county's small claims website. Submit the forms to the small claims court. The court will schedule a hearing.
3. Service of process
Your friend has become the defendant. He must be served at least 15 days before the hearing date if the defendant lives in San Francisco county. If the defendant does not live in the county, s/he must be served at least 20 days before the hearing date. A capable adult must serve a true copy of the claim. You cannot serve the defendant.
4. Evidence
You next gather all evidence to submit at the hearing. Evidence would include a copy of the cancelled check that you gave your friend and dates and notes of all phone calls that you made to him. You may want to take a photo of his new house.
5. At the hearing
Small claims courts are generally much more informal that other courts. The judge will ask you questions, and then s/he'll ask your friend, the defendant, questions.
If you have presented the situation with evidence, the judge will probably rule in your favor.
You've won your case, and your friend is now going to pay you back, but suppose he doesn't. Suppose he is a real jerk and has decided that he wants you to have to work just a little harder to get your money back.
6. Collecting a judgment
You have to collect the judgment. The defendant may pay the amount directly to the court. If the defendant does not have the money, the defendant may have to pay installments.
If your friend refuses to pay, you can complete an Application and Order for Appearance and Examination which would require your friend to appear in small claims court to have his income and resources examined.
You could also consider wage garnishment by completing a Writ of Execution. This writ could also levy your friend's checking or other bank account.
If your friend has a business with a cash register, a sheriff can go to the business for a till tap. The sheriff can take enough money from the cash register to pay the judgment debt. The typical sheriff's fee for a till tap is $85.00. We hope your friend doesn't put you in this situation, but if you are ever in this situation, the purpose of small claims courts is to resolve small problems without the expense of an attorney. This is the do it yourself legal remedy.
Disclaimer: This article is not to be considered legal advice. If you need legal advice, seek out a licensed attorney. Remember that small claims courts do not require an attorney. If, however, the losing defendant appeals the small claims court's decision, the new venue is a superior court. In a superior court, you will need an attorney.
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