Consumer Protection Law
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Dear Customer, thank you for choosing Just Answer. I am sorry to learn of this situation, and that the police department is not willing to assist you in this matter.
Your friend cannot use your property that was left behind when you moved, and the clear intent that you showed by taking the plates and documentation showed that you had no intention for him to "borrow" the vehicle in your absence. The fact that he kicked you out of the house under any circumstances does not give him the right to use or to keep your personal property.
You may go to civil court (small claims would probably be sufficient to demand the return of the car, although the value would technically place it in general civil court), and file a lawsuit against him for a tort called "conversion" and declaratory relief, asking that the court issue a judgment requiring him to return the vehicle to you.
It is such an inconvenience, I would rather not have to waste time and energy, will I need a lawyer for all this?
Given the fact that this is clearly your car, and that your friend is driving without proper license or registration, once you file your lawsuit you can immediately file a motion for injunctive relief asking that the court issue an order requiring that the vehicle go back to you pending the resolution of the money damages in the court trial.
You do not need an attorney. An attorney is helpful, particularly in general civil court where the procedure is much more complex, but small claims court is designed for litigants to appear without an attorney and the procedures are much more relaxed.
the car is not parked where I left it and I have no clue where he is parking it
I was considering getting a private investigator finding out where he is keeping it and driving it away from there
will small claims handle the case? you said the value may place it in civil court
Despite where he is parking it, you can still get jurisdiction over him (based on his residence), and over the car as your own personal property. You can serve him with the lawsuit and the motion for injunctive relief at the same time, and hopefully encourage him to settle the matter without having to go through the entire litigation process (or perhaps simply telling him you will do so). If he damages the vehicle, he is responsible for the damages.
Small claims vs. general civil is based on the dollar figure you are asking for. If you are asking for a lower dollar figure than the jurisdiction of the court (NY is $5,000.00, http://www.courts.state.ny.us/courts/nyc/smallclaims/) you can sue in small claims. This means that if you are asking for damages (the amount of money you want back from the individual due to his wrongdoing - not punitive, just the amount of money it has cost you, is less than that amount you can sue in small claims court, or if you are willing to settle for less than that you can sue in small claims court).
You can always start in small claims and move the case go general civil case if necessary.
so I will have to personally go and serve him papers?
No, somebody else will have to personally serve him with the summons and complaint (and if you wish the motion for injunctive relief at the same time).
the motion will require him to release the car right?
If you are able to get the court to issue the order, yes. The basis for the order would be that First and Foremost, you have a high likelihood of winning; second, you have proof that the car belongs to you and that you did not pass on title to the other person, three, that by giving possession of the car to you the car will maintain the "status quo" throughout the litigation process (you can cite to the fact that the other person is hiding the car regularly now, which is directly contrary to a legitimate claim.
I have all the documentation pertaining to ownership.
That is what you would have to present to the Court as exhibits to your motion. This type of motion is called an "ex parte" motion meaning that you file it with very little notice (just over 24 hours - or without notice if you can show a reasonable basis such as a likelihood that the other party will harm the vehicle if they received notice of the motion).
I"m not exactly clear on your last response. you mean the motion for injunctive relief is likely to be granted if I prove the car will be harmed?
My apologies for the confusion. I do not know whether or not the relief will be granted. Courts are very scattered as to which judges will grant relief and on what grounds. I do know that if you are able to get a court order for possession very early in the case when that is what you really want, it is a powerful tool to saving time and money over the course of the litigation by getting the defendant to settle and relinquish their claim.
If you believe that the car will be harmed (make sure it is a good faith belief, this is your first affidavit to the Court under penalty of perjury), you can file the motion without notifying the other person first. This type of relief is very rare, and even if the car may be harmed, the court might still force you to notify the other party as courts do not want to issue orders without giving the other side the opportunity to appear and respond (the risk would be "what if you are lying and the car belongs to the other person?").
when would I need to present the evidence?
when filing the motion or during the actual trial
Both. You cannot get relief from the Court without evidentiary support.
so can you walk me through what to expert when I walk in to file this claim I mean is it a room with paper that I walk into start filing this claim or do I stand before a judge
Make sure you do not actually file your originals with the Court when you are filing your papers, copies are sufficient unless and until the originals are requested by the Court, or you go to trial. (In small claims litigants often bring them with them anyway, just to make sure they have them handy - it saves the trouble of having to make a second trip to court).
I have never done this before
To start a claim you will need to file a complaint with the Court - this is a document that has your allegations of fact, and causes of action (why your friend is liable to you), just from your description, you can include at least "conversion" and "declaratory relief". The Court will give you a summons, which is a paper notifying the defendant that they have been sued and will have to respond to your complaint within a certain number of days. You are responsible for finding a friend or a process server to give both the summons and complaint to the defendant. Once you do that you must return the "proof of service" (a short document that the person who served the summons and complaint signs) to the Court to be filed.
To file a motion, you must write a short statement to the Court with the facts that are relevant to your motion why you deserve to have your motion granted (you must find law in support of your position), and tell the court what your requested relief is (you want an injunction to give you the car until the end of the lawsuit can determine ownership).
what if there is no friend to serve him can the police serve him?
No, you can pay for the Marshall to serve him, but it is better to simply hire a private process server (it usually is a nominal fee).
what is a private process server?
Here is a link to a website that has a much more detailed description of the litigation process, and information that may help you with getting started as well: http://www.nycourts.gov/COURTS/nyc/smallclaims/resourcecenter.shtml
A process server is an individual who specializes in "serving" or delivering legal documents to individuals personally. They sign the proof of service so that it can be filed with the court and the court knows that the individual has received the documents. (The do other things as well, but that is not relevant to your action at this time).
where do I find these people?
Do an internet web search for "process server" and use your zip code, several should pop up right away. Choose one that is a "registered process server". You can also contact your local court's self help desk, they should be able to assist you with finding one.
this all seems so complicated
so will it have to be served the same day I file the suit?
It does not have to happen on the same day. You can file the lawsuit first (your complaint), have the summons and complaint served, and then worry about the motion later. If you are fortunate, you can simply send your friend a copy of your proposed complaint before you file it with the court and ask them to return the car. (this is called a "pre-litigation demand letter" and is often successful in civil cases).
oh I was not saying filing them together was complicated I was just having a moment of realization that the process is quite involved... You are being very helpful though
anyway thank you for answering my questions. So having proof of ownership will be all I will need at the trial right?
That will be all that I can see from here - I don't know if something else will come up or if other issues will arise, but as far as I can see, all that you need to show is that he has your car and isn't giving it back. This is conversion.
If he denies that he has the car what should I do?
I can't really develop a trial strategy for you (it is outside of what I am permitted to do on this forum), but if he does attempt to deny ownership, it will be difficult for him to explain why the vehicle is no longer parked where you left it.
(You did say he had a spare key for the car).
I think that was one of the reasons why the cops wouldn't file it as stolen since there was no appearance of forced entry
or broken glass
That makes sense. Unfortunately, police departments have relatively limited budgets and when they see an issue as being a "civil matter" they tend to try to push enforcement onto the victim in civil court as opposed to dealing with it as a criminal matter. There is an issue with you having provided a key which would make a criminal prosecution difficult as well, but that does not relieve him of the civil liability.
yes, it felt like they were giving me all kinds of reasons why they wouldn't want to be involved and I do see why
at first I thought, "You won't even offer to escort me to the house to request my vehicle back"
No, some agencies may offer to do so, but that is strictly a discretionary thing based on time and officer inclination (or departmental policy).
ok. thank you so much for all your help. I will go to small claims tomorrow. I hope there is no line when I go
I wouldn't want to stand in a long line to file a clain
I can't tell you that - lines at the clerk's window can really vary. The best way to be prepared is to have your forms completed ahead of time and make several copies of everything so that you can have it all stamped and out the door.
The link I gave you above has several pdfs that you can use to get your complaint together and some information on how to complete the information.
oh so I have to fill out the claim ahead before I get there?
or I can?
Yes. You need to have your complaint filled out prior to going to the Clerk's office. There is most likely a self help desk at the court that can assist you with getting the proper documents together and helping you prepare everything for filing (they will not help you with the legal issues or arguments, but they will help you with the actual documents etc. so that you can get your claim filed properly).
I'm looking at the small claims form now and I wouldn't know what to check for primary reason for claim
This is your claim, but your matter deals with the loss of use of real property, the failure to return property, or other (and you can fill in the blank). This is a cover sheet that just allows the court to categorize the case, it does not affect your actual claims.
gotcha is there a way to get access to this conversation we have had in the form of an email or something?
After we have finished, this will be available to you on a link and you can access it at any time.
good, so once I fill out the cover sheet they will provide me with a proper claims form?
No, you need to fill out the cover sheet, and a complaint. Try this link: http://www.courts.state.ny.us/COURTS/nyc/civil/forms.shtml and go to the part "starting a case". I would really recommend trying to get an appointment or stopping by the Court's self help desk to get the necessary forms in a row, it may take a little bit of time up front, but it will make things a lot easier in the long run.
thank you. It looks like a long road ahead
Litigation does take a long dime (but it takes a long time for both parties. Courts encourage pre-litigation settlement, perhaps this roommate of yours is willing to settle before you have to actually file (or even shortly thereafter).
so when I file I can give him the chance to settle by sending him a copy of the litigation? will that precede the summons or no?
Settlement can happen at any time, but the "pre-litigation demand" that I mentioned earlier is where you would send a copy of your complaint with a demand letter to the other person before you file it and tell them that you will file in a certain number of days, or something like that. This is just a common practice by many civil litigation attorneys, not a civil procedure requirement or statutory one, but it can often be effective, especially in situations such as this with clear liability.
ok, I will go to the court tomorrow or call and see if I can get an appointment and start from there
I do wish you the best of luck with this matter (I hope that the self help center or the clerk's office is able to assist you with getting the necessary documents together). If you are not able to get any further help, they should be able to give you some other references, but the primary document that you will need is a "complaint".
and that is in the form of a statement?
Here is a "sample" http://www.probono.net/ny/library/attachment.61892
I don't know any of the legal jargon
and the actual laws
someone would help me?
You need to find a local attorney to give you legal advice or instruction as to how to fill out a complaint. Unfortunately, I cannot draft that kind of document (or give you the "step by step" instructions) as that would constitute practicing law, which I cannot do through this forum. It is possible that the self help desk will assist you with filling this out, but I cannot promise that, most limit themselves to giving assistance with document preparation. If you want to limit your initial preparation time, you may want to simply send a letter saying that you intend to file without actually drafting the complaint at this time. If you do not receive possession of the car then you can take steps to get a complaint drafted.
letter to who?
Your roommate. (A settlement demand letter similar to the one we discussed above).
ok, I'll go there and see what kind of help they have
thank you for all yourhelp
good night and please send me the link for the conversation
Once the conversation switches from "chat" to "Q&A" you will get a url link directly. I am happy to hear that the information was of some assistance, please do not forget to rate my service this evening. Best regards, Bill.
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