Published: June 29, 2007 05:40 pm            

VIDEO: Collecting civil judgments after winning do-it-yourself lawsuits can be a headache

OLCOTT — It all began with a lease for an apartment that Robert Mack never really moved into.

“I moved my stuff in, but never stayed,” Mack said. “I was never there for more than three hours.”

The Olcott resident said the Royalton duplex was new, but wasn’t quite finished. Mack found small water spots, a paint job that needed finishing, holes where faceplates should be and other minor projects. However, Mack asked for them to be finished before he and his girlfriend Reannon Rohring, who was three months pregnant, moved in.

The Nov. 1 move-in date came and went, and the projects hadn’t been completed. After negotiations failed, Mack moved his possessions out of the home.

He tried to get his security deposit, first month’s rent and moving expenses back, but said the property manager only offered to return the security deposit.

“We went back and forth,” Mack said. “It ended up with me saying ‘I’ll see you in court.’ ”

Whether it’s over a security deposit that hasn’t been paid or medical expenses for a dog bite, Niagara County residents rely on small claims court to sue for little sums of money without having to hire an attorney.

The court process

Small claims court is designed to be a do-it-yourself process. In the City of Lockport, people can sue for up to $5,000; the Town of Lockport handles claims that are $3,000 or less. Unlike the city’s court, people who open cases in the town can only sue individual people and not corporations.

To open a case, claimants have to fill out a form and pay a filing fee. In the town, the form is one page and only leaves three lines for a description of the claim. The notice of claim is “served” by mailing it to the defendant through regular and certified mail.

When it’s time for court, Justice Leonard G. Tilney Jr. said claimants and defendants bring any available paperwork and witnesses.

“It is usually wrapped up in one day,” Tilney said. “I’ve had them last a half-an-hour to a couple hours.”

While the proceeding is more relaxed than others, testimony is still given under oath. Decisions are filed in court records.

February was not Mack’s first time in front of a small claims court. A few years ago, his suit against another man over a title on a car made it from Hartland Town Court to the small screen on “Judge Judy,” a popular reality TV show.

Mack attributes part of this year’s win in the city’s small claims court to a comment made by Phil Lange, who was identified as the owner of the property by PMG Realty attorney Roger Ross. He reportedly showed up in place of his wife, Kathleen Lange.

“(He) had told me in the basement ‘whatever it took to make me happy,’ ” Mack said. “And the judge asked him if he said that and he said yes. So he kind of sealed his own fate.”

Judge William Watson’s decision specified a judgment of $2,145, which included his first month’s rent, security deposit and moving expenses. Mack said he received notice of the favorable decision in the mail.

“The promise to complete the work was of extreme relevance because the work included painting, which could be harmful to plaintiff Rohring, who was pregnant at the time,” the decision read.

Ross said Phil Lange had offered to pay back the security deposit despite Mack’s breach of the lease.

“The bottom line is we were all shocked at the result,” Ross said. “It seemed to us that this tenant clearly breached the lease and we really thought the judgment was very likely to be in our favor.”

The Langes could have filed an appeal, although they wouldn’t have been able to retry the case. Tilney said the appellate court will merely review the lower court’s decision to make sure it wasn’t erroneous. Ross said PMG Realty doesn’t want to “drag it out any further.”

Getting payment

Winning a favorable small claims award and collecting it are two separate matters. Chief Doug Piskorowski, of the Niagara County Sheriff’s Civil Process Division, said usually people have to do more than just win a civil judgment to collect their money.

If a person hasn’t been able to collect his money after asking the debtor, they can purchase execution forms from Lockport Office Supply, fill them out and bring them to the civil division.

Much like the small claims process, getting the judgment paid is a self-serve process, Piskorowski said.

“I would like to do more for them, but I can’t give them advice,” Piskorowski said. “I can’t fill out paperwork for them.”

One of the most common ways people try to get their money back is through a income execution. If the person knows where the debtor works, he can pay up to $82 to have that person’s wages garnished until the full judgment is paid. Bank levies also are popular if the person knows where the debtor has accounts. A deputy can withdraw the amount from the debtor’s account.

Piskorowski said almost all income executions end in payment.

“Usually they don’t want their employer to know about it,” Piskorowski said.

A creditor’s examination is another option, said attorney Earl Cantwell. The event mimics a legal deposition.

“If you do not know much about the person, you can get a notice of examination to have them come in with their books and records,” Cantwell said. “You can ask if they own any property or have other accounts ... they have an obligation to tell you where their assets are.”

The examinations can be done via mail, but Cantwell said the answers aren’t always accurate.

Perhaps the most surprising thing Mack discovered while trying to retrieve judgment is that he needed to put up more money first. Mack receives $900 in social security each month because of a disability, making it hard for him to invest much in executions.

Fees for most of the executions are around $50, although a property execution involving a car requires a $500 fee up front. However, Piskorowski said additional fees are tacked onto the judgment and paid back.

More extreme measures can be taken to make debtors pay up. Piskorowski has sent deputies to their businesses to seize money from cash registers as many times as necessary.

“It gets their attention real fast,” Piskorowski said. “The last thing you want is a deputy coming into your restaurant at a peak time. They pay it off real fast.”

Other options include a warrant of commitment, which is executed against the debtor during court. Piskorowski said someone who hasn’t paid up can be taken to jail. Real estate also can be seized, although that’s a process that usually requires an attorney’s help. The chief said that option is not always worth it because the first $50,000 of the house sale must go to the owner.

If a person still hasn’t paid after a few different executions, it’s likely they just don’t have the money. A judgment lasts for 10 years. Ross said not paying a small claims award can negatively effect someone’s credit if the winner files a transcript of the judgment role at the county clerk’s office.

“There are some people who avoid that,” Ross said. “They’ll write the check because they don’t want to screw up their credit. If you’re dealing with people who don’t care about things like that, if they’re scumbags or really don’t like you and will do anything to delay paying you, sometimes I don’t think it matters.”

A resolution

Mack said he attempted to seize Kathleen Lange’s car, although there was reportedly another lien against it. He has since gotten help from attorney Ross Cellino, whose firm is representing Mack in a personal injury case.

Cellino said he is planning to have the transcript of the judge’s decision certified and served to the duplex’s management group out-of-state.

“Ultimately we will find a part with legal responsibility to pay this,” Cellino said.

Phil Lange said his wife is not involved in this process, although he admits she was there while Mack and Rohring were signing the lease. The renters both said they mostly dealt with Kathleen Lange when it came to their lease and apartment, although she did notify them she was not a Realtor. Phil Lange said his daughter is “an investor in the corporation.”

As for the pending civil judgment, Phil Lange said it will be paid in time.

“The corporation will take care of it,” he said.

Contact reporter Tasha Kates at 439-9222, ext. 6241.

        

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