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  1. #1

    Default Trying to Recover Money

    My question involves small claims court in the state of: New York

    11 months ago, I appeared in a commercial. *I secured this work through my then-manager (M) and, as is customary, I signed a contract that called for my manager to receive full payment of 6000$ from which she would deduct her 20% commission and pay me the remaining 4800$. *Three months after the job, I inquired about my money and was told that the check had been sent out. *When this was clearly not true, I asked again and was told by my manager that it would be sent that week. *I have copies of the text messages and the basic gist is that she she assures me she will pay or has already done so. *After 6 weeks of excuses I asked a friend of mine who is in law school and she suggested filing suit against M. *Before doing so, I gave M 2 more chances to pay or work out some sort of payment plan and was basically ignored, at which point I filed my case in Small Claims Court. *

    About a month later (2 weeks before our first hearing), I received an email from her requesting all records regarding payment so they could prepare an end-of-the-year statement and to reflect my income and their expenses. *One of M's excuses was her need to make an accounting but she never mentioned that I owed her any money for expenses which made sense because I always paid for my expenses (fed-ex, copies, etc.) out of my own pocket. *

    The first hearing was postponed and the night before the second hearing, I received another email (baiscally identical to first) requesting my financial info. *I found this strange because at the first hearing the judge said that my tax forms would be sufficient proof of my earnings. *At this next hearing, M gave me an expense report for over 9,000$ from the past 4 years. *Never before had she given me anything like this. *Many of the items on the report were estimated. *Others were just wrong -- ex, I am charged 50$ for a fed ex but in an email from that date she states that it was 30. *In addition, there is a "charge for quarterly operations" which adds up to almost 1000$. *There are other charges for cards made in my name which she never gave me that add up to about 900$. *She has stated that she has no receipts. *Fast forward one week and she emailed me another report where the figure is reduced to just 2300$.

    Last week at an*unsuccessful*mediation, M told me that these charges were made pursuant to our contract. *First, I never signed a contract with her despite repeated requests. *Second, there is no specific mention of a quarterly charge. Third, one of the reasons I did not sign with her was because the contract is for exclusive representation and at the time we started work together I used her services to supplement the work I was already doing. *I have dozens of emails where we talk about my work with other representatives and not once does she object (in fact she encourages me to find more work with other agencies).
    ** *
    After a bunch of postponements by M we have our hearing next week and I had a few questions. *

    (1) My friend told me that her expense report might be inadmissible due to hearsay rules and that it did not fall into an exception for business records because this report was not prepared "in the normal course of business." *In fact, it was never submitted to me until after I sued M and, as she acknowledges in an email, was made "in order to resolve our payment dispute without involving Small Claim Court". *Is this true? *If it is, what should I say to the judge? *It seems totally unfair to bring up 4 years of expenses at once (... especially because she never mentioned until I sued).

    (2) Do I need to ask M questions in court?*

    (3) Since it has been almost a year and I am forced to go to court to collect my money, I do not feel that she should be allowed to collect her 20% commission. *Are there any legal theories that I could use to keep her from getting this commission?

    (4) Also, I'd like to ask for interest because it has been almost a year since the job and she has had use of the money and I have been struggling to pay my bills. *Is there a standard amount to ask for? a calculation?

    I really appreciate your help.

  2. #2
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    Default Re: Trying to Recover Money

    Small claims courts typically operate under relaxed rules of evidence, such that "all sorts of stuff" gets in. You certainly would want to point out to the court that the document at issue is not a business record, was not prepared pursuant to any actual contract or agreement, was fabricated for the purpose of the court proceeding, that the numbers seem to have no basis in reality and seem to change from day to day, and that no claim of any such charges had been made to you over the preceding four years.

    In some small claims courts the court may permit you to ask questions; in others the judge will do all the asking.

    You can argue to the court that due to her fraudulent conduct and breach of contract she should be denied her commission; I can't promise what the court will do.

    You can ask for interest. Normally you can't get pre-judgment interest, but most states make an exception when it's money; I would ask the court for pre-judgment interest. Interest rates are normally set by statute although this site suggests that it may be set at the court's discretion (assuming the law has not changed since it was written).

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