Legal advice (with usual disclaimers, of course) requested re: Small claims issue

I had been buying updates for a particular piece of software for years. About two years ago, the company offered a prepay update program: You “subscribed” to their program, and you were promised at least four updates, culminating in a the final version. Not only did that mean that you could get improvements more frequently, they also offered it for less than the cost of the upgrade when it came out (so you’d save money)

I’d done this with this company once before, and 'though they were slower than promised, I did get the updates and the final version.

However, with the 2.0 -> 3.0 update, it’s been more than 2 years. One unadvertised feature (unwanted by me, but I’ll conceed that it’s useful) was added (the company thinks the fact that they threw in this “bonus” feature is signifigant somehow), only 1 or 2 of the 12 features promised have been added, and there have been 3 (?) updates in the 2+ years. The last one was the ability to resize windows within the program :rolleyes:

Regardless, I asked for my money back today stating that I hand not recieved the features I wanted and they did not perform the service (4 updates in a year) in the time promised. I was told in a semi-incoherent letter that [ul]
[li] I was lucky that I was getting anything[/li][li] They gave me a bonus feature: what about that, huh?[/li][li] I had 30 days to ask for a refund. Now it’s too late.[/li][/ul]

We’re “only” talking about $250.00.

My questions:

  1. I’m in a different state than this company. If I go to small claims court, they’ll be forced to come here to defend themselves. Correct?

  2. If they don’t show or if I win, will the courts help me collect? If so, how?

  3. At $250.00 is it worth it (monetarily) to go? Certainly it’s worth it on principles, but costwise…I could use some opinions.

  4. I suspect they’re operating out of a garage somewhere. The response I got was…um…WAY less than businesslike. < cough >

  5. If I decide to go the small claims route, is there anything wrong with a final e-mail saying “I’m sorry to hear that you feel that way, but if I am not given a refund, I’ll be forced to go to small claims court to recover my money” or would that be…arrgh…wrong word…‘incriminating’ somehow?

Minty Green, Jodi? Anyone? Any lawyerly Dopers have any (non-binding, you won’t be held responsible, etc) advice?

Thanks!

Fenris

Oops! I forgot to mention that they promised that the four updates and the final version would be out within a year.

IANALY, but I recently studied personal jurisdiction. Shortly after our final the following article appeared in the NY Times A Libel Suit May Establish E-Jurisdiction. Here’s an excerpt:

Welcome to the fun world of minimum contacts and fundamental fairness. AFAIK the internet opened up a new world of questions as to when one person/company can legally be thought to have subjected themselves to a different forum. I know I’m not answering your question (actually, I think my point may be that there might not yet be an answer) but I thought I’d post something of interest re jurisdictional issues. (Go Abernathy!)
Rhythmdvl

I was told something by someone who is definitly not a lawyer. If someone owes you money and you go to them and say “Give me the money you owe me or I’ll go to the police” it’s illegal. I was told this was a form of extortion. (I suppose it is a threat). He then went on to say that you ask for your money, and if you don’t recieve it, then take legal action. This way there’s no threat involved.
But anyways, do you have anything in writing, how did you pay (check (which you could get the cancelled check back), CC (find the statement, etc), did anyone sign anything (you, them), was their anysort of contract, etc… Personally, I would just let it go, if anything go trash them on a BBS that talks about that type of software. Of course if you do take them to court they may just give you a refund to shut you up.

Oh, just got a new idea here. Use the Better Bussiness Beareu to your advantage. That will help sometimes. I actually used it once and got my Linksys 4 port switch upgraded to a brand new Router. The BBB may put a little pressure on the company to make things right for you, all though they won’t take sides in the matter.
As for where you’d go to small claims, it would probably be the county that THEY are located in, since that’s where the money went, that’s where they are located, but you’d have to check to make sure. Also if you do go that route, you may want to first send them registered mail asking for a refund or whatever you want. Make sure you explain the whole thing in detail, much like you explained it for us, that should help your case quite a bit. Good luck
BTW if you don’t want to disclose the name of the company that’s fine, but I’d love to find out who it is.

Joey: the BBB is a good idea (and I’ll probably do it) but they don’t have the ability to enforce anything. But they can warn other potential customers.

I doubt that saying that “If you don’t pay, I’m going to court” is a threat (I’d love to hear from one of the Doper Laywers on this). It’s a statement of fact. Wouldn’t threats require an illegal threat (“If you don’t pay, I’ll kick your ass!”)?

Thanks

Fenris

I don’t know anything about small claims court, but I do know that collecting is up to you. The courts simply say “Yup, he owes you $xx”. It’s up to you to hire the muscle to actually get the money.

But being a bussiness they most likely have bank accounts you can tap, and no doubt have property (cars, buildings, houses, computers, apparently (according to the OP) a garage) that you can put a lein on.
I wonder if you can put a lein on intellectual property?

  1. Telling someone you’ll take them to court is not illegal. Telling them you’ll rat them out to the cops might be, but that’s not what you’re doing. Merely informing someone that you think you have a credible claim and that you’re going to take action isn’t extortion – it’s an offer to settle. (As long as it’s made in good faith.)

  2. I don’t think personal jurisdiction is an issue here. Yes, they’re located outside your jurisdiction, but the fact that they formed a contract directly with you means they’re interested enough in your state to be sued there, at least on this particular agreement. (I’m assuming you’re still in the same state as you were when the contract was formed. If you’ve moved in the meantime, it’s a more interesting question.)

  3. So yes, you can sue them in small claims court. Technically, they have to pay their own way to come defend the suit, so you’d expect that the cost therein entailed would convince them to just give you a refund. Unfortunately, what would probably happen is they just wouldn’t show up. That means you’d typically get a default judgment, stating that the company owed you $250.

  4. Which is a good first step, but like Athena stated, that’s just an adjudication of what is owed you. It doesn’t mean they’re going to pay. You have to enforce the judgment. (I realize she was being tongue-in-cheek, but “muscle” is useless in this situation – you enforce the judgment in court.) What you need to do is go to a jurisdiction where they do have property and file an enforcement action there. You’ll win that one too, and ultimately, if the defendants don’t pay up after you do that, they can get sent to jail, assuming they’re not destitute.[FN1] However, this is obviously going to cost you a hell of a lot more than the $250 you’re owed, what with expenses in two state courts, time off work, travel to their loaction, etc. That’s the problem. Until you go to their jurisdiction and enforce the it, the original judgment you get in your home court’s only value is in the satisfaction it brings.

–Cliffy, Esq.

[FN1] We don’t have debtors’ prisons anymore. If a debtor can pay an enforced judgment but refuses to, he can go to jail, but not if his failure to pay is a result of being unable to do so.

N.B. I have no experience with either small claims court or the enforcement of judgments. I know almost nothing of the facts of this case, nor do I know what state you’re in. I am not licensed in your jurisdiction, nor am I familiar with its laws. I am not competent to render legal advice in this matter. You should consult with an attorney, licensed in your jurisdiction, conversant with the facts and with a full knowledge of the applicable area of law. You are not my client. I am not your lawyer.

AFAIK you can’t put a lein on someone’s anything unless you have a agreement to do so prior to the contract signing, or if the civil judgement is a result of a criminal act. Basically, you can report them to a credit agency and try and screw up thier credit, but judging from the level of service you’ve gotten so far, they probably won’t care.