small claims court – Attorney Driven Credit Repair

Step One:

Call and ask about getting a refund. Explain the problem and be as nice as possible. Many companies pride themselves on good customer service and are more than happy to help you get a refund. Being nice is the key here. Don’t yell, swear, or threaten anyone. Be nice even if they turn down your refund request.

Step Two:

If the company refuses your first refund request give the matter a day or two and then call back and speak with a supervisor or manager. Many companies will either refuse to escalate the call or even put a low-level customer service agent on the phone pretending to be a manager but ask anyway. Proceed as you did in Step One and simply and nicely ask for a refund. Don’t get angry no matter what response you get. You can get a refund if you don’t give up. It just might take a little more effort.

Step Three:

If the company rejects or ignores both of your verbal refund requests it is time to write a letter to the company requesting a refund. Again, be nice. Simply explain the issue without making any threats and send the letter to the company’s billing dispute department if it has one. If not, send it to their customer service address. Send the letter by certified mail and allow the company 30 days to investigate your complaint. It may call, so be prepared to calmly discuss the issue.

Step Four:

If the company doesn’t respond and fails to issue the refund after 30 days, it is time to escalate your complaint. Write a second letter and this time send it to an executive such as the company president or vice president. Use the Internet to find the correct name and address. Stay nice and calmly explain your complaint and why you want to get a refund. Do not threaten them in any way. Send the letter certified mail. If after 30 days they still fail to respond or issue a refund, proceed to Step Five.

Step Five:

If you are sure you have a legal basis to get a refund your next step is to advise the company of your intention to sue. Have an attorney review your complaint to be sure you are justified in requesting a refund. An official opinion about the merits of your case from a consumer law attorney will help you avoid wasting any time or money pursuing a losing issue. Frankly, if you are not absolutely certain you have a legal justification, you should have stopped trying to get a refund at Step Two. Furthermore, do not threaten to sue unless you absolutely WILL sue. Empty threats make you a jerk, not an informed consumer. In the letter you still need to be nice even though you are advising the company you plan to sue. Respect goes a long way here and if you show anger or frustration the company is less likely to take you seriously. Again, send this letter by certified mail.

Step Six:

If, after 30 more days, the company still has not issued a refund or contacted you to discuss the matter it is time to sue. Typically, suing in small claims court is your best option but, in many cases, hiring an attorney and proceeding in a higher court is more likely to succeed in getting you a refund. It really depends on how much money is at issue. Either way, going to court is a drastic and sometimes stressful occasion so don’t do it alone if you aren’t sure of your ability to handle it properly.

If needed, feel free to review our previous article for more information about the process of suing a company in small claims court.

Small claims court is often the best option available to enforce your rights against a deceptive or abusive company. Filing fees are much lower than in higher courts and the procedural and evidentiary rules are relatively relaxed and simple. Indeed, the small claims court judges themselves will typically apply the rules appropriately and fairly and will interpret the legal issues necessary to rule in your case. In most cases you will simply tell the judge your side of the story and he will do the rest. The process is designed to be as simple and consumer-friendly as possible.

To start your small claim court case, your first step is to determine which small claim court is most appropriate to hear it. In a contract dispute the appropriate court will be located in the county in which the contract was entered or the work was to be performed. In injury cases, the small claim court used will normally be where the injury occurred. If the case involves a real property dispute the proper court will typically be the county in which the property is located. If you are unsure, consult your state’s rules governing small claims procedure to determine the appropriate venue for your case.

Your next step is to download and complete the following forms from the court’s website:

Small Claims Court Complaint (sometimes entitled Affidavit)
Summons
Military Affidavit

Once the forms are completed, file the Small Claims Complaint or Affidavit and Military Affidavit with the court. You will pay a filing fee at that time and the court will issue the Summons and return it to you.

Your next step is to serve a copy of the Complaint and Summons on the Defendant. Some small claims courts will have a box or shelf where you can place a copy of the Complaint and Summons to be served but, if not, process servers are easy to find online. Once the process server delivers the documents to the Defendant he will notify the court that the Defendant has been served and send you a bill. Pay it quickly, it is money well spent. You cannot serve the Defendant so do not try. A disinterested person of suitable age must serve process and certify under oath and penalty of perjury it has properly served the Defendant. Your case dies if this doesn’t occur properly. In limited circumstances you can serve the Defendant by mail but check your local rules for the exact requirements. Again your small claims court case dies if this is not done correctly.

Your next step is to prepare for trial. Make three copies of all documents on which you plan to rely; one for you, one for the Defendant, and one for the court. Make a checklist of your talking points and important facts but do not waste any time or effort preparing a detailed script. You will not need it. If you have witnesses make sure they are coming to the trial. If needed, you can have the small claims court issue a subpoena to make them appear but only do so if the witness is openly hostile and you think they probably won’t show up. Seriously, you will almost certainly be sleeping on the couch if you subpoena your spouse.

At trial, simply tell the small claims court judge your story. Use your checklist to be sure you don’t forget any important facts. The judge will ask you and your witnesses questions and he expects very concise and specific answers. He does not want a long monolog detailing every nuance of your feelings about the situation. The judge only wants the facts important in deciding how to apply the law to your case. He will know what questions are important and what issues on which to focus. If you think he is missing an important fact or issue tell him what you think he needs to know, but again, keep it brief.

Once he has heard from the parties and witnesses the judge will then make his ruling from the bench. On rare occasions he will take your case under advisement and issue a ruling in a couple of weeks but doing so is extremely unusual so don’t expect it. If you win your case, the court will provide you with a judgment form. Send a copy to the Defendant by certified mail even if he appeared in court. You want proof he received it. The Defendant will typically have up to 30 days to appeal the small claims court judgment but you can begin collecting on the judgment immediately if you wish.

Now that you know how to take a case to small claims court you can be your own advocate. In many cases where deceptive and fraudulent sales practices are involved, however, you may want to consult with a consumer law attorney to determine whether or not a particular statute can help to maximize your damage award. In consumer law cases statutory damages are frequently higher than your actual damages. It is an important detail you do not want to miss.

How to Get a Refund