Dear Coffeysm,
Of course the usual disclaimers apply to our answers not constituting
legal advice so please take the following answer as general advice as
to how to proceed.
NOW, Right Out Of The Box - Can you collect from ex-girlfriend in a
Florida Court? I Sure DO Think YOU Can!
For an $800 claim (+ interest) the best option is clearly the Florida
Small Claims Court. In these courts attorneys are generally only
permitted to appear on a limited basis and the process is really
designed for unrepresented parties to appear and work out their money
disputes with the help of a judge or magistrate. The court's
jurisdictional limit, in Florida, is $5,000 so you will be fine there.
THE BASICS
Here is a wonderful website developed by the Florida courts that
explains the process:
http://www.jud10.org/CountyCourt/SmallClaims/claims.htm
COURT RULES
As with any court proceeding, there are strict rules to follow. In
this case, these are the Florida Small Claims Rules, which can be
found here:
http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/5E3D51AF15EE8DCD85256B29004BFA62/$FILE/307SCR.pdf?OpenElement
NOW, the BIG Questions are: (1) can you sue your Indiana ex-girlfriend
in Florida? (2) did the promise to repay you have to be in writing?
(3) what should the "complaint" that you file with the court look
like? and (4) what about interest?
(1) Can You Sue Your Indiana Ex-Girlfriend In Florida?
It appears that, Yes, you can sue here in Florida since she has
breached a contract by failing to perform (make the payments to you in
Florida).
Every state has what they call a "long-arm statute" which is to say
'the long-arm of the law.' The general rule is that you must sue a
person in the state and county in which the reside or do business
which would require you to travel to Indiana.
Florida's statute is contained at Section 48.193 and says (at least
that part that we care about):
(1) Any person, whether or not a citizen or resident of this state,
who . . . does any of the acts enumerated in this subsection thereby
submits . . . herself . . . to the jurisdiction of the courts of this
Florida:
(g) Breaching a contract in this state by failing to perform acts
required by the contract to be performed in this state.
(3) Service of process upon any person who is subject to the
jurisdiction of the courts of this state as provided in this section
may be made by personally serving the process upon the defendant
outside this state, as provided in section 48.194. The service shall
have the same effect as if it had been personally served within this
state.
Notwithstanding this neat little provision, you could probably sue her
in Florida anyway. See the Small Claims Rules.
(2) Did The Promise To Repay You Have To Be In Writing?
No, it doesn't need to be in writing.
The Florida Statute of Frauds, which is the law that defines which
documents have to be in writing. Contracts, in many instances, do not
have to be in writing to be legally enforceable.
However, the Statute of Frauds requires that some contracts must be
written and signed to be valid. Under Florida law, contracts involving
goods priced at $500 or more, promises to pay the debts of another,
promises made in consideration of marriage, and promises that cannot
be fulfilled within one year must be written to be valid. Similarly, a
personal representative's promise to pay the debts of an estate, a
promise to pay a debt barred by the statute of limitations, home
solicitation sales, home improvement contracts, contracts concerning
an interest in land, health care guarantees, newspaper subscriptions,
and credit agreements must be written.
None of these areas involve your issue ? the lending of money on a
short-term basis to ungrateful girlfriends.
NOW, you still must be prepared to show the court your evidence of the
loan. You wired her the money, so your bank or Western Union or
whoever you used, will be able to provide you with a receipt. Anything
in writing is a good thing. Any friend that heard you talk about
lending her the money can be a witness, or get their statement in
writing. Notes as to when you discussed the loan with her are good.
I wouldn't worry about the character stuff too much. One piece of
evidence might be OK, but the judge will probably "just want the
facts, man!" Be prepared to give the judge or magistrate the facts.
Have copies. Write a script.
(3) What Should The "Complaint" That You File With The Court Look Like?
The Small Claims Court should have a form that you can fill out that
contains your "complaint." Nevertheless, the Florida Rules of Civil
Procedure suggest the following nice brief form for a complaint on
money lent.
COMPLAINT
Plaintiff, YOU, sues defendant, HER, and alleges:
1. This is an action for damages that <fill in the what, where, why ?
all the relevant facts ? use separately numbered paragraphs>
2. Defendant owes plaintiff $800 that is due with interest since
<date loaned the money>, for money lent by plaintiff to defendant on
<date loaned the money>.
(4) What About Interest?
Apparently Florida allows 12% interest. I would suggest compounding it
annually. You may want to consider using a lesser rate (say 6%) since
it sends the court a message that this isn't about getting even . . .
(5) What Else?
You will have to "serve" her with the papers. Ask the court clerk what
the court requires. If you need to personally serve her, find a
process server in her home town and he/she will be happy to personally
serve her with the court papers for a small fee ? usually less than
$50 ? and provide you with an affidavit of service to give to the
court to prove that she was, indeed, served.
If she doesn't show up, and your paperwork is in order, including your
Proof of Service, the court will give you a "Default Judgment" which
means You Win! If she does show up, then you try your case focusing
on the money transfer and the loan that was intended by both parties.
Once you get a Judgment, then you have to collect on it. The
instructions from the Small Claims court may have some suggestions on
this complex matter, but in a nutshell you may be able to garnishee
her wages, bank accounts, or state tax refunds. The court will have
all of this paperwork as well.
(6) In A Nutshell
Go For It! It isn't real easy, but it beats hiring an attorney for
$1,500 on your $800 (+ interest) claim. It isn't real hard, either.
The trick is to follow the rules, get the forms, fill them out
carefully, listen carefully to the court clerks, and MAKE SURE YOU
HAVE GOOD SERVICE OF PROCESS AGAINST HER.
Best of Luck!!
If you need any clarification, please bump the button and ask away.
weisstho-ga
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