contract-law
LOAN DEFAULT UK-US Citizens
<p>I am a UK citizen and a US citizen owes me money. We have written confirmation of repayment, the US party has defaulted
Can I apply to Small Claims Court in the US without personally attending the Court? Hearing?</p>

<p>Thanks for any clear advice</p>

<p>You <a href="http://www.scscourt.org/self_help/small_claims/small_claims_overview.shtml" rel="nofollow noreferrer">cannot be represented in Small Claims Court by an attorney</a> (&quot;You are not allowed to have a lawyer&quot;).  If you do not attend the court hearing, your claim will probably be dismissed under <a href="http://www.scscourt.org/court_divisions/civil/civil_rules/civil_rule19.shtml" rel="nofollow noreferrer">Rule 19</a>(F), which says:</p>
<blockquote>
<p>F. DISMISSAL FOR FAILURE TO APPEAR AT HEARING</p>
<p>If a party does not appear at the hearing, his or her claim will be dismissed, but if there is a claim against him or her, it will be heard.</p>
</blockquote>
<p>To make a claim against this person without personally traveling to San Jose, you will need to hire a lawyer, who will have to file the claim in civil court.</p>
<p>The <a href="http://www.scscourt.org/court_divisions/small_claims/small_claims_home.shtml" rel="nofollow noreferrer">Santa Clara County Small Claims Division</a> has a lot of information on this.  Their home page links to small claims self-help pages for both <a href="http://www.scscourt.org/self_help/small_claims/small_claims_help.shtml" rel="nofollow noreferrer">the county</a> and <a href="http://www.courts.ca.gov/selfhelp-smallclaims.htm" rel="nofollow noreferrer">the state</a>.  The county's overview page has a small table <a href="http://www.scscourt.org/self_help/small_claims/small_claims_overview.shtml#comparison" rel="nofollow noreferrer">comparing small claims court with civil court</a>:</p>
<blockquote>
<p>See some differences between Civil Court and Small Claims Court, below:</p>
<pre><code>+---------------------+---------------------------------+-------------------------+
|                     | Small Claims                    | Civil                   |
+---------------------+---------------------------------+-------------------------+
| Appeal              | Only the party who was sued can | Either party can appeal |
|                     | file an appeal. The person who  |                         |
|                     | filed the claim cannot appeal   |                         |
+---------------------+---------------------------------+-------------------------+
| Attorney            | You can’t have a lawyer file    | You can have a lawyer   |
| Representation      | your papers or go to court with | file your papers and go |
|                     | you – except for an appeal      | to court for you        |
+---------------------+---------------------------------+-------------------------+
| Filing fee for      | $30 - $100 per claim            | $180 - $320 per claim   |
| either defendant or |                                 |                         |
| plaintiff's claim   |                                 |                         |
+---------------------+---------------------------------+-------------------------+
| Pretrial Discovery  | No                              | Yes                     |
| allowed             |                                 |                         |
+---------------------+---------------------------------+-------------------------+
| How long to         | 30-70 days after the complaint  | 120 days after you file |
| complete your case  |                                 | the complaint           |
+---------------------+---------------------------------+-------------------------+
</code></pre>
</blockquote>
<p>It's also worth noting that the maximum claim amount is $10,000 for individuals, so if the amount is over $10,000, you need to file the claim in civil court in any case.</p>

<p>More typical than going to small claims court would be to hire a lawyer in the U.S. to bring a lawsuit in the appropriate U.S. court on your behalf. Usually a lawyer can handle everything other than signing affidavits (which don't have to be done in the U.S.), testifying in a deposition, or testifying in person at a hearing or trial. Sometimes testimony isn't necessary. If it is, it is often possible to arrange to have testimony provided by telephone. </p>

<p>If the amount in controversy exceeds $75,000, a federal court forum may be selected.</p>

<p>Once a judgment is obtained, the lawyer then engaged in the steps necessary to collect funds from the defendant using the judgment awarded.</p>

<p>Attorneys are not free and if the amount in dispute is small, it is often not economically viable to enforce the debt.</p>

<p>In lieu of going directly into a lawsuit, a creditor can hire a collections agency to try to collect the debt. Collections agencies note the default in the debtor's credit rating and also take non-judicial action to try to collect the debt (basically writing letters and calling on the phone asking to be paid). If that proves futile, the collections agency brings suit in court with its lawyer. Typically, collections agencies charge a small sign up fee and then a percentage of the recovery, typically from 33% to 50% depending on the nature of the debt. Again, your testimony, which can often (but not always) be provided via telephone, is often necessary.</p>

<p>If the debt is several tens of thousands of dollars, hiring a lawyer is usually worth it. If the debt is in the thousands of dollars, a collection agency is often a good choice. If the debt is in the hundreds of dollars or less, writing off the debt and refusing to do business with the person in the future is usually the most cost effective course of action.</p>

<p>Of course, it only makes sense to make any effort to collect the debt if the debtor has some ability to pay. If the debtor is bankrupt or simply has no income or assets, collection is not viable and you need to write off the debt.</p>
