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  1. #1

    Default Small Claims Court Appearance, Pro Se

    Hello all,

    I've served my motion to vacate and order to show cause today and have a scheduled court date next week.

    To make a long story short, I'm positive that the SOL has kicked in but since the burden of evidence is on their end, I'm not going to bring this up on my court date for strategic reasons.

    In the service affidavit, they claimed to have served my wife. I'm not married and I'm pretty confidently sure that this in and of itself should be enough to get a judgment vacation.

    Any tips on how I should represent myself? Should I dress in a suit? I don't want to appear in front of the judge as someone who has money but I also don't want to show up like a schlub.......slack and dress shirt, suffice?

    Many thanks!

    Cheers!

  2. #2
    Join Date
    Jul 2006
    Posts
    5,437

    Default Re: Small Claims Court Appearance - Pro Se

    Business casual would do.

    By the way, SOL is a defense which means YOU must bring it up or lose it.

  3. #3

    Default Re: Small Claims Court Appearance - Pro Se

    I did put the SOL in my motion to vacate....as one of the paragraphs.

    Is this something that I need to bring up again at my court date?

    I'm assuming that it is. I guess my court date will comprise essentially the question of whether I was properly served - which I wasn't. My understanding is that this should suffice a judgment vacation.

    How do I bring up the SOL issue?

    Also, I'm ashamed to admit it but since I opened this charge account, I have not made 1 single payment. So does that then mean that the SOL clock runs from the actual account opening date?

    Many many thanks in advance!

    I'm so nervous....Cheers!

  4. #4
    Join Date
    Oct 2005
    Location
    Massachusetts
    Posts
    755

    Default Re: Small Claims Court Appearance - Pro Se

    The SOL clock starts from the last activity date on the account.
    Your first month of non payment.
    How much is the debt for?
    If it's chump change, they might not even show up in court.

  5. #5
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Small Claims Court Appearance - Pro Se

    The date upon which the statute of limitations starts to run is usually the date of last activity, but not all states follow that rule.

  6. #6

    Default Re: Small Claims Court Appearance - Pro Se

    Wow. I didn't know that. Thanks.

    So how is this first court date going to work out.....

    I will be there in the courtroom with the judge and Plaintiff's attorney (hopefully they won't show).

    The judge will ask the 2 parties?

    The central question during the short court appearance will be the question of whether proper service was executed?

    I will declarate that the SOL has expired? The judge and opposing attorney will ask me for proof? Or I will demand that plaintiff bring forth evidence?

    Many thanks in advance!

  7. #7

    Default Re: Small Claims Court Appearance - Pro Se

    I'm in New York by the way...

    I've never represented myself in a court hearing but am confident that I have a tight case -- I just need a little background data as to what I should expect next week in court.

    Thanks so much again!

    Cheers!!

  8. #8
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Small Claims Court Appearance - Pro Se

    From what you have said, this is a hearing on your motion. You will present your argument to the court, and the plaintiff will present theirs. You should not hold back important information, such as the statute of limitations issues, as the court will likely want to know that you have a valid defense.

    As for your "wife", if it was in fact an adult member of your household that was served, be careful about playing games.

  9. #9

    Talking Re: Small Claims Court Appearance - Pro Se

    I will essentially bring up the fact that I was not served, my "wife" was not served because I don't have one (the affidavit of service states that the process server actually had a conversation with my "wife") nor was any adult in my household served as well.

    I certainly don't want to waive my right to the SOL as an affirmative defense so I will raise it. My understanding is that the burden NOW shifts on me to prove that the SOL has expired. What's the best way to do this?

    I have an old credit report from 2002 that states that the last date of activity was 8/1999 (they filed the lawsuit in 9/2006) and it clearly says "Charge Off" in the status section. Is this legit documentation? I'm also going to go to my old bank today to try to get all of year 1999 activity records. Is it a good idea to bring this stuff with me to court?

    But even before I raise the SOL defense, isn't the onus on the Plaintiff to even prove that they have a legit claim?

    Also, if the old CR is deemed good decent evidence and the old bank account statements turn out to prove that my last payment was sometime in 1999, would I be able to make a motion for a summary judgment to toss out the case? Is the Plaintiff going to bring evidence with them as well or are they just going to argue the "proper service?"

    I certainly want to be well prepared for the hearing but am I considering bringing too much evidence with me to what I essentially think will be a hearing to MERELY decide whether service was proper? I mean isn't service the main and central theme in this hearing?

    Also, if I am allowed to make a motion for summary (based on my abundant evidence and Plaintiff's lack thereof), where can I get a sample of this motion form?

    Many thanks for all your help guys!

    Cheers!

  10. #10
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Small Claims Court Appearance - Pro Se

    Your tiptoeing around the question leaves me with the impression that somebody was served, and that you know who was served.

    A "charge-off" has absolutely no relevance to whether or not a debt is enforceable in court.

    You don't seem to be disputing that their claim is legitimate.

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