Oops. that was atypo. I meant $7400.00 in cash.
she filed a small claim court and I recieved court date is April 12 2013.
prior to the court date please advise me what I need to do. And since these check has been written more then Three years ago and she is now suing
me for that, do you think chances the judge will listen to her side and I may end up to pay her again.
Hi ladylawyer, in follow up - this matter has not been litigated before and there was no judgement awarded. As I mentioned, I just received a court date from small claims for April 12, 2013 regarding unpaid loan $7400.00 with proof my written checks (two) the above sum.
(1) I thought in CA written checks has statute of limitation = 3 yrs? Those checks were written Mar. 9, 2009.
(2) Is this legal in CA? This lady organized a money pot, collecting let's say $500.00
every week on 50 people, each week 1 person out of the 50 will get paid $24,500.00 and she pockets $500.00. She do not pay tax on this.
(3) The amount of $7,400.00 I incurred was I did not pay a weekly (it accumulated) and when its was my turn to collect my pot, she deducted the $7,400.00 + interest I have to pay her. No proof of this but there are checks written all the way to 2012 that was tore (when cash is paid/deducted from pot) except these 2 checks that she did not tear and found out when she was cleaning her new house. What is my legal rebuttal on this that I already paid her, she just forgot?
Okay, lets start over. :)
1) All U.S. banks are subject to federal code stating that a check can be declined after 180 days, or approximately six months, after it was written. California does not have any laws that extend or reduce this period. The issuing bank still has the option to cash or decline a personal check after 180 days have passed. Some banks will still honor a check in this case and some will not. Clearly, your bank would not cash the checks if plaintiff tried to recently present them. Now, as long as the plaintiff is within the statute of limitations based on the ORIGNIAL injury she is claiming, then she can sue. We have to dig a little deeper to see if she is still within that time frame. So, let's say you had an oral contract with the plaintiff to pay her weekly for this money pot. The plaintiff apparently believes that when she tried to collect the money from you, you paid her in the form of two checks. She does not remember you gave her cash. Several years go by and she finds the checks. Forgetting that you already paid her the money in cash, she sues to collect on the checks because the bank will not cash them for her now. However, because you wrote these checks back in 2009, the plaintiff should be BARRED by the statute of limitations on oral contracts, which happens to be 2 years in the state of CA. Thus, you need to ask the judge to dismiss the lawsuit based on the fact that the statute of limitations on your oral promise to pay is up. That will be your first argument.
2) No, what she is doing was not even legal. If a contract is illegal then it is void as a matter of law. Thus, the duties arising from it are void as well. You should not have to pay the plaintiff for something that was illegal in the first place. This will be your second argument.
3) As we already discussed previously, and if the judge does not dismiss the case based on the above two reasons, you are going to have to take your bank records into the hearing with you and argue that you already paid this woman. You don't have any other proof besides your bank records showing withdrawals at this time, so you cannot offer anything more than that. Honestly, the case should not even get this far because it should be dismissed on #1 and #2 above, but if for some slight chance it isn't and the judge really wants to hear if there is a case and controversy, then you will show him the evidence you have, tell him your side of things, and hopefully this will be enough to convince him to enter a judgment in your favor. Many times, these small claims cases come down to credibility, that is, who the judge believes more. So keep that in mind when you are speaking.
Hope this helps to clarify. If you still have questions, please just let me know. If not, please consider a positive rating at this time. Thanks Kim!
Thank you for your response, I am glad I was able to put it in details and I am exonerated by your response. I do not want to push my luck but I would like to file counter claim on this person.
1. Harrassment - there was a time where everyweek she was yelling and screaming in my business stall even with people present, that I will have to pay for this in one way or another, that I will never get away with this, that she know where I live, etc.
2. Defamation - At least 1 couple she spoke with, my business neighbor, when I was not in, and told them all these lies in her side of story. Now these persons jokingly tells me, oh somebody is looking for you, looks like they are asking for payment! Can I ask for a written statement from these people as witness?
3. Pain/suffering - One occassion, my parents (in their 80s) we with me when she was yelling, they were very upset. This has been very traumatic. It caused discord between my husband and I. I have sleepless nights which I think affecting me, I had surgery for colon cancer March last year and last month I was diagnosed with peptic ulcer. I know I am stretching it but definitely the situation will not make it better.
4. Do I have a case? How do I go about it? How much can I be compensated?
Thank you again LADYLAWYER for your help. Bless you and regards.
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